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R  E  P  O  R  T 


PRESBYTERIAN  CHURCH  CASE 


THE  COMMONWEALTH    OF   PENNSYLVANIA, 

At  the  suggestion  of  JAMES  TODD  AND  OTHERS, 

VS. 

ASHBEL  GREEN  AND  OTHERS. 


V 

BY  SAMUEL  MILLER,  Jr. 

A     MBMBER     OF     THE     PHILADELPHIA     BAl 


PHILADELPHIA: 
WILLIAM   S.   MART  I  EN. 

SOUTH-EAST  CORNER  SEVENTH  AND  GEORGE  STREETS. 
1839. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1839, 

By  SAMUEL  MILLER,  Jr., 

In  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


PREFACE. 


A  FEW  words  will  suffice  to  explain  the  general  character  of  the  fol- 
lowing work.  The  reporter  was  requested  to  undertake  the  preparation 
of  it,  and  hopes  that  he  has  done  some  service  to  the  cause  of  truth,  and 
justice,  and  religion,  in  perpetuating  a  full  record  of  the  case.  A  strict 
impartiality,  the  highest  recommendation  to  such  a  work,  he  has  carefully- 
endeavoured  to  maintain;  and  he  thinks  that  a  candid  examination  will 
satisfy  every  reader,  that  the  idea  of  its  being  a  party  publication,  an  idea 
to  which  the  supposed  bias  of  his  private  opinions  and  feelings  may  give 
rise,  is  entirely  erroneous. 

A  verbatim  report  of  the  Vv^hole  argument,  both  that  upon  the  trial  at 
Nisi  Prius,  and  that  on  the  motion  for  a  new  trial,  before  the  Court  in 
bank,  Avould  have  swelled  the  book  to  an  ungainly  size:  it  could  not  con- 
veniently have  been  compressed  into  the  compass  of  a  single  volume. 
Selection  and  condensation  were  therefore  absolutely  necessary,  but  the 
principles  which  here  governed  the  reporter  in  this  part  of  his  labour 
should  be  fully  explained,  that  all  responsibility  may  rest  where  it  pro- 
perly belongs.  First,  however,  he  would  say  a  few  words  in  regard  to 
the  other  parts  of  the  volume.  Judge  Rogers'  charge  to  the  jury,  with  the 
exception  of  the  introductory  paragraph,  which  was  not  written,  and  the 
final  opinion  of  the  Court,  have  been  taken  from  the  original  manuscripts, 
and  great  care  has  been  exercised  to  insure  their  accuracy.  The  parol 
testimony  is  given  without  curtailment,  in  the  precise  language  of  the 
witnesses  and  the  counsel,  so  far  as  that  could  be  preserved.  It  is  re- 
ported, for  the  most  part,  in  the  usual  method — not  by  way  of  dialogue, 
as  much  of  it  was  given  in,  which  would  unnecessarily  have  swelled  the 
work,  but  by  connecting  together  the  questions  and  answers,  as  if  the 
v^^itnesses  had  spoken  continuously.  In  some  cases,  where  the  nature  of 
the  dialogue  seemed  to  require,  it  has  been  given  at  length.*  The  docu- 
mentary evidence  has  been  copied  in  full,  excepting  where  mere  refer- 
ences, for  reasons  elsewhere  explained,  have  been  thought  sufficient.  The 

*  This  matter  may  be  more  fully  explained  by  an  example.  See,  at  the  bottom  of  page 
109,  post,  the  first  two  questions  and  answers  of  the  dialogue  between  Mr.  Sergeant  and  Mr. 
Adair.  That  part  of  the  testimony,  if  reported  as  a  great  deal  of  the  rest  is,  would  appear 
thus: — 

"  Mr.  Adair.  I  think  an  appeal  may,  under  some  circumstances,  be  out  of  order.  I  have 
no  experience  as  to  whose  business  it  is  to  declare  it  out  of  order." 

Much  of  the  evidence,  however,  given  on  the  examinations  in  chief,  was  given  in  a  nar- 
rative form,  without  questions  being  put.  The  reader  can  generally  distinguish  between  the 
two  cases. 


4  PREFACE. 

testimony,  the  charge,  and  the  opinion  of  the  Court,  were  the  parts  which 
it  seemed  most  important  to  preserve  entire. 

In  preparing  the  different  arguments,  which  are  given  at  length,  the 
reporter  has  received  much  aid  from  several  of  the  learned  counsel;  and 
he  would  take  this  opportunity  of  tendering  to  them  his  grateful  acknow- 
ledgments for  the  kindness  with  which  they  have  afforded  him  every 
assistance  in  their  power.  This  part  of  the  work  will  be  found  to  contain 
a  full  and  correct  exhibition  of  the  argument,  somewhat  condensed.  The 
phraseology  of  each  speaker  has  been  in  a  great  measure  preserved:  the 
recollection  of  a  mere  listener  would  probably  detect  few  verbal  depar- 
tures from  the  original.  Still  it  is  proper  to  say,  what  has  already  been 
intimated — that  a  verbatim  report  was  not  intended;  and  that  the  precise 
language  of  the  counsel  is  not  always  given.  The  report  is,  in  each  case, 
from  two-thirds  to  three-fourths  in  length,  of  the  argument  as  actually  de- 
livered. 

It  was  originally  proposed  to  give  merely  a  synopsis  of  the  arguments 
on  the  motion  for  a  new  trial.  To  have  reported  them  also  at  length 
would  have  carried  the  work  far  beyond  all  reasonable  limits;  and,  besides, 
each  one  of  the  counsel  who  spoke  on  both  occasions,  necessarily  went 
over  nearly  the  same  ground  in  each  case.  It  also  seemed  advisable  to 
furnish  the  reader  with  a  synopsis  of  the  argument,  after  the  same  had 
been  exhibited  at  length.  Various  reasons,  however,  induced  a  change  of 
plan  so  far  as  regarded  Mr.  Sergeant's  speech.  A  report  of  this  was  taken 
for  the  purpose  of  separate  publication;  but  after  it  was  taken,  several  con- 
siderations appeared  to  justify  its  being  incorporated  with  the  present  work. 
Mr.  Sergeant  had  not  addressed  the  jury  at  all,  and  some  of  the  positions 
whichhetook  were  entirely  new.  Accordingly  his  argumentin  full  has  been 
inserted.  One  speech,  therefore,  of  each  of  the  counsel,  with  the  exception 
of  Messrs.  Randall  and  Hubbell,  whose  openings,  only,  are  so  given,  is 
reported  at  length;  and  of  the  other  speeches  a  mere  synopsis  is  exhibited. 

The  length  of  each  opening  and  argument  was  about  as  follows: 


Trial. 


Mr.  RandaWs  opening 
Mr.  HubbeWs       " 
Mr.  Meredith'' s  argument 
Mr.  Prestoji^s  " 

Mr,  Ingersoll's         " 
Mr.  Wood's 


Motion  for  a  New  Trial. 

Mr.  HubbeWs  argument  14 

Mr.  Meredith's  \  ,    , 

Mr.  RandaWs    5  ^ 

Mr.  Sergeant's  \0h 


H 

hours. 

4^ 

ii 

8 

a 

10^ 

a 

Thus  much  in  explanation  of  the  character  of  the  work.  We  propose 
now  to  give  a  brief  account  of  the  proceedings  in  the  case  preliminary 
to  the  trial  at  Nisi  Prius. 


PREFACE.  5 

Immediately  after  the  events  of  the  7th  of  May,  1838,  which  resulted 
in  the  organization  of  two  distinct  Assemblies,  the  Rev.  Mr.  Squier, 
Judge  Brown,  and  the  Rev.  Mr.  Hay  commenced  the  suits,  which  were 
given  in  evidence  from  the  docket,  on  the  trial.  Post,  p.  201.  They 
were  prosecuted  no  farther  than  the  service  of  the  summonses,  and  the 
entry  of  appearances  for  the  defendants.  On  the  31st  of  May,  while  the 
Supreme  Court  for  the  Middle  District  of  Pennsylvania,  was  sitting  at 
Harrisburg,  Chief  Justice  Gibson,  with  the  concurrence  of  the  whole  court, 
allowed  on  special  cause  shown,  the  writ  of  quo  warranto,  which  com- 
menced proceedings  in  the  case  here  reported,  and  the  writ  was  issued  on 
the  2d  of  June.  On  the  30th  (the  last  Monday)  of  July,  the  case  was 
brought  before  Judge  Kennedy  on  a  motion  for  a  rule  to  show  cause  why 
the  writ  should  not  be  set  aside.  The  following  report  of  the  argument 
and  decision  then  made  is  copied  from  the  United  States  Gazette. 

«  Mr.  Kane  (with  whom  were  Chauncey  and  Bradford)  moved  the 
Court  for  a  rule  to  show  cause,  why  the  writ  in  this  case,  should  not  be 
set  aside,  as  having  been  obtained  improvidently,  inasmuch,  1st.  As  it  is 
made  returnable  in  vacation:  2d.  As  the  suggestion  filed  is  insufficient. 
And  for  an  order  that  the  rules  entered  by  the  relators  (rules  to  plead) 
be  in  the  mean  time  suspended. 

"  Mr.  Kane  proceeded  to  examine  the  diflferent  Acts  of  Assembly,  and 
the  authorities  on  his  first  ground;  and  argued  that  the  suggestion  did  not 
state  that  the  relators  were  elected  in  the  place  of  the  defendants. 

"  Mr.  Meredith,  on  the  part  of  the  Relators,  replied  to  Mr.  Kane, 
showing  that  the  writ  in  this  case  had  been  granted  by  Chief  Justice  Gib- 
son, while  sitting  at  Harrisburgh,  with  the  approbation  of  the  whole 
court — that  a  writ  of  Quo  Warranto  had  issued  in  the  same  form  in  the 
case  of  the  Ninth  Presbyterian  Church — that  the  law  and  the  practice 
under  it  sanctioned  this  mode  of  proceeding — that  even  if  it  had  been 
irregular,  objection  was  waved  by  the  appearance  of  the  defendants,  and 
could  not  now  avail  them.  On  the  second  ground  Mr.  Meredith  replied, 
that  the  suggestion  was  in  the  usual  form — that  the  title  of  the  relators 
was  stated  only  to  show  their  interest  in  the  subject-matter,  and  that  though 
the  fact  were  otherwise,  it  might  be  assumed  for  the  purposes  of  this 
argument,  that  the  relators  were  not  elected  in  the  place  of  the  defendants. 
<'Mr.  Randall  (on  the  same  side)  commenced  by  stating  that  they  had 
no  right  to  inquire  into  the  motives  of  those  who  made  this  motion,  but 
its  practical  effect  was  delay:  if  successful  it  would  only  postpone  the 
issuing  of  the  writ  till  next  December.  He  had  indulged  the  hope  that 
both  parties  would  unite  in  a  prompt  and  speedy  termination  of  the 
unhappy  controversy.     All  such  expectation  he  now  abandoned. 

"  Mr.  Randall  was  then  proceeding  to  cite  authorities,  when  he  was 
stopped  by  the  court,  who  directed  the  other  side  to  proceed. 

"  Mr.  Bradford  then  addressed  the  court  on  all  the  grounds,  and  to  the 
suggestion  of  delay,  replied,  that  the  defendants  were  ready  to  meet  the 
case,  but  would  insist  on  its  being  conducted  in  a  legal  manner;  if  the 
proceedings  were  irregular,  they  ought  not  to  wave  any  advantage  it  might 
afford  them;  that  there  was  great  justice  in  the  science  of  special  plead- 
ing, and  if  they  could,  they  would  in  this  case  invoke  its  aid. 

"  The  case  was  continued  until  a  late  hour  in  the  day,  when  the  court 
refused  the  motion  on  all  the  grounds  taken  by  the  defendants. 


6 


PREFACE. 


"  Mr.  Kane  then  stated  that  the  rule  to  plead  would  expire  on  the  next 
day,  (the  31st  July)  and  successively  asked  the  court  to  enlarge  the  rule  till 
the  2d  Monday  in  December,  and  the  1st  Monday  in  September  next, 
both  of  which  motions  were  also  refused  by  the  court,  in  the  order  in 
which  they  were  made." 

The  counsel  for  the  defendants  then  filed  pleas;  and  issue  was  joined 
between  the  parties  on  the  7th  of  November.  The  case  was  now  put  by 
the  counsel  for  the  relators,  at  the  head  of  the  trial  list,  for  the  second 
period  of  the  July  term  of  Nisi  Prius  for  1838,  as  a  commonwealth  cause, 
and  therefore  entitled  to  priority.  But  Judge  Sergeant,  who  sat  during 
that  period,  which  commenced  on  Monday,  November  26th,  decided  that 
it  was  not  such  a  cause  as  could  claim  precedence,  reading  in  support  of 
his  opinion  Rule  thirty-ninth  of  the  Supreme  Court,  *•'  If  the  Common- 
wealth is  not  interested  in  the  event  of  a  suit,  such  cause  shall  not  be 
entitled  to  a  priority  in  the  trial  to  other  actions,  although  the  name  of 
the  Commonwealth  may  be  used  as  a  party  thereto." 

On  Saturday,  December  29th,  1838,  on  motion  of  Josiah  Randall, 
Esquire,  the  Court  fixed  the  first  day  of  the  second  period  of  the  ensuing 
Nisi  Prius,  for  the  trial  of  the  case  by  a  special  jury.  Monday,  March 
4th,  1839,  was  the  day  so  appointed. 


CONTENTS. 


Trial. 

FAGZ 

Introduction,             -            -     '       -            -            -            -  9 

Mr.  Randall's  Opening,       .            _            -            -            -  12 

Testimony  for  the  Relators,           -            -            -            -  20 

Mr.  Hubbell's  Opening,       -----  129 

Testimony  for  the  Respondents,     -            -            -            -  155 

Rebutting  Testimony  FOR  THE  Relators,    -            -            -  211 

Testimony  for  the  Respondents,     -             -             -             -  221 

Mr.  Meredith's  Argument,              -             -             -             -  225 

Mr.  Preston's              «           -             -           '  -             -             -  276 

Mr.  Ingersoll's           «           -             -             -             -             -  339 

Mr.  Wood's                   "           -             -             -             -             -  397 

Judge  Rogers'  Charge  to  the  Jury,             -            -            -  461 

Verdict,          -             .             -             -             -             -             -  482 

Motion  for  a  New  Trial. 

Reasons  for  a  New  Trial,                .            .            .            -  453 

Mr.  Hubbell's  Argument,                 .            -            -            -  495 

Mr.  Meredith's       "             -----  502 

Mr.  Randall's          "             .            -            -            .            .  505 

Mr.  Sergeant's        «              -----  509 

Mr.  Randall's          "              .             -             -             -             -  586 

Opinion  of  the  Court,  by  Gibson,  C.  J.         -            -            -  587 


ERRATA. 

Page  38  line  A5  for  'Forms  of  Government Ve«fl? 'Book  of  Discipline.' 
«  142      "       3   "     decision  "      election. 

«  145     "     38   «     absent  «      respond. 


PRESBYTERIAN    CHURCH    CASE. 


INTRODUCTION. 


We  propose  to  give  as  a  preliminary  to  our  report,  a  short  account  of 
the  peculiar  kind  of  action  instituted  by  the  plaintiffs  in  this  case.  Ques- 
tions are  frequently  asked  in  regard  to  it;  and  nothing  conduces  so  much 
to  the  satisfactory  understanding  of  a  subject,  as  a  clear  explanation  of  all 
prelusive  difficulties.  In  fact,  some  such  introduction  as  we  here  offer,  is 
necessary  to  a  clear  comprehension  of  terms  to  be  afterwards  employed. 

The  writ  of  Quo  Warranto  is  by  no  means  a  common  one  in  the 
practice  either  of  Pennsylvania,  or  the  other  states  of  the  Union;  and, 
therefore,  in  respect  to  it,  mere  general  readers  are  not  usually  possessed 
of  even  that  scanty  knowledge,  which  they  frequently  have  acquired  in 
respect  to  legal  subjects  of  more  ordinary  exemplification.  This  writ,  in 
its  original,  as  a  remedy  provided  by  the  common-law  of  England,  was 
the  commencement  of  a  criminal  proceeding.  It  was  issued  on  behalf  of 
the  king,  to  determine  the  right  of  an  individual,  or  body  corporate,  to  an 
office,  franchise,  or  liberty,  granted,  or  supposed  to  have  been  granted  by 
the  crown;  in  other  words,  to  inquire,  quo  warranto,  by  ivhat  autho- 
rity, such  privilege  was  exercised,  and  to  punish  its  abuse  or  usurpation. 
This  proceeding,  being  found  on  several  accounts  inconvenient,  fell  into 
disuse,  and  the  method  of  prosecuting  by  information,  in  nature  of  a  quo 
warranto,  filed  by  the  attorney-general,  took  its  place,  as  a  speedier  and 
more  advantageous  process. 

Originally,  no  private  person  could  institute,  in  his  own  behalf,  the  pro- 
ceeding either  by  quo  warranto,  or  by  information ;  but  the  statute  9 
Ann,  c.  20.,  authorized  the  court  to  grant  the  latter  form  of  action,  as  a 
civil  remedy,  in  certain  cases,  the  name  of  the  king,  however,  being  still 
employed,  and  the  real  plaintiffs  appearing  on  the  record  only  as  inform- 
ers, or,  in  technical  language,  relators. 

The  Constitution  of  Pennsylvania  provides,  that  "  No  person  shall,  for 
any  indictable  offence,  be  proceeded  against  criminally  by  information, 
except  in  cases  arising  in  the  land  or  naval  forces,  &c.,"  which  clause  has 
been  construed  to  take  away  the  remedy  of  information,  or,  as  it  is  usu- 
ally called,  the  original  name  being  given  to  the  substituted  form,  oi  quo 
warranto,  as  a  criminal  proceeding  in  ordinary  cases.  The  Supreme 
Court,  however,  supporting  a  practice  of  which  there  had  been  several 
precedents,  since  the  adoption  of  the  constitution  of  1799,  from  which 
the  clause  just  quoted  from  that  of  1838,  was  copied,  had  established  its 
right,  to  issue  a  quo  ivarranto,  as  a  civil  remedy,  before  an  Act  of 
Assembly,  which  passed  so  lately  as  June,  1836,  and  is  still  in  force, 
expressly  granted  the  power  to  that  court,  and,  in  certain  cases,  to  the 
several  Courts  of  Cdtomon  Pleas.     The  act  referred  to,  however,  while  in 

2 


JO  PRESBYTERIAN  CHURCH  CASE. 

its  effect,  but  declaratory  as  to  the  right  in  general,  enlarges  that  right, 
and  prescribes,  at  some  length,,  the  manner  of  proceeding. 

The  writ  of  quo  warranto,  as  a  private  remedy,  issues  by  leave  of  the 
court,  or  of  a  judge  thereof,  on  information  or  suggestion  verified  by 
affidavit.  It  is  in  every  respect  a  mere  civil  process,  though  the  name  of 
the  Commonwealth  has,  in  our  practice,  taken  the  formal  place  of  that  of 
the  king.  The  wrongs  which  it  may  be  employed  to  redress,  are  diver- 
sified. Some  of  these  are  enumerated  in  the  act  just  referred  to ;  but  for 
our  present  purpose  it  suffices  to  say,  that  it  is  a  proper  and  convenient 
method  of  proceeding,  to  determine  the  right  of  a  body  corporate  to  exer-. 
cise  its  franchise,  or  of  any  person  or  persons  to  hold  their  seats  as  mem- 
bers of  such  a  body. 

As  already  intimated,  though  on  the  record  in  this  species  of  action,  the 
Commonwealth  appears  as  a  nominal  party,  prosecuting  ex  relatione — at 
the  suggestion  of  certain  persons,  yet  the  relators  are,  in  every  respect, 
the  only  true  plaintiffs.  They  apply  for  the  issuing  of  the  writ,  they  con- 
duct the  proceeding,  and  the  judgment  is  usually  for  their  benefit.  Any 
number  of  persons,  either  as  relators  or  defendants,  may  be  joined  in  a 
single  writ,  if  it  appears  to  the  court  or  judge  granting  the  same,  that 
their  several  rights  may  be  thus  properly  determined. 

A  quo  luarranto  is  in  the  form  of  a  summons,  commanding  the  parties 
therein  named,  to  appear  and  show  by  what  authority  such  party  exer- 
cises the  liberty  and  franchise  described  in  the  writ.  The  previous  sug- 
gestion must  set  forth  the  facts  of  the  case  circumstantially.  The  defend- 
ant thus  summoned,  appears  and  pleads  or  demurs  to  this  suggestion 
filed,  and  by  the  regular  course  of  pleading,  an  issue  either  of  law  or  of 
fact  is  joined.  If  the  former,  the  cause  is  set  down  for  argument  before 
the  court;  if  the  latter,  it  goes  to  a  jury;  and  in  either  case,  the  matter  is 
determined  in  the  usual  way.  As  the  Supreme  Court  sits  at  Nisi  Prius, 
that  is,  for  the  decision  of  questions  of  fact  by  a  jury,  for  the  City  and 
County  of  Philadelphia  only,  when,  in  the  course  of  proceedings  on  a  quo 
warranto  in  that  Court,  a  fact  arises  proper  to  be  tried  in  another  county, 
an  issue  is  directed  to  the  Common  Pleas  of  such  county,  to  be  there 
determined. 

Where,  as  in  the  present  case,  the  issue  joined  by  the  parties  is  an  issue 
of  fact,  the  jury  having  found  a  verdict,  judgment  may  be  entered  for  the 
successful  party  after  four  days,  unless  within  that  time  a  motion  is  made 
either  in  arrest  of  judgment,  for  some  error  whicli  vitiates  the  proceed- 
ings, appearing  on  the  face  of  the  recoi'd,  or  for  a  new  trial,  where  from 
circumstances  not  appearing  on  the  record,  it  seems  that  justice  has  not 
been  done.  These  motions  are  argued  before  the  court  in  bank — that  is, 
before  all  the  judges  sitting  in  a  body  to  determine  questions  of  law;  and, 
in  the  present  case,  are  the  only  remedies  for  the  unsuccessful  party,  since 
the  Supreme  Court  of  Pennsylvania  is  the  highest  tribunal  in  the  State — 
the  last  resort.  Where  judgment  is  given  in  a  Court  of  Common  Pleas, 
it  may  be  reviewed  upon  a  writ  of  error,  Issuing  out  of  the  Supreme 
Court,  in  the  exercise  of  its  appellate  jurisdiction.  The  judgment  thus 
entered,  if  in  favour  of  the  plaintiff,  is  that  the  defendant  be  ousted  and 
excluded;  and  the  successful  litigant  in  every  case  recovers  his  costs  of 
suit.  It  is  manifest  that  such  a  judgment  does  not,  in  form,  determine  the 
right  of  any  other  party  than  the  defendant,  though  it  may  do  so  in  fact. 


INTRODUCTION.  1  [ 

If  the  due  election  of  certain  new  members  of  a  body  corporate,  in  the 
place  of  as  many  old  members,  determine  the  office  of  the  latter,  and,  the 
parties  taking  issue  on  the  fact  of  such  new  election,  the  verdict  is  for  the 
plaintiff,  the  judgment  must,  in  effect,  give  a  right  of  entry  on  the  one 
hand,  while  it  pronounces  an  ouster  on  the  other.  Until  judgment  is 
finally  rendered,  the  last  resort  having  been  tried,  the  defendant  continues 
in  the  exercise  of  the  disputed  right,  unless  the  court  to  which  a  writ  of 
error  is  brought,  sees  fit,  on  sufficient  cause  shown,  to  award  execution, 
notwithstanding  such  writ. 

In  the  above  concise  view,  we  have  confined  ourselves  chiefly  to  those 
aspects  of  the  subject,  which  have  seemed  impoi'tant  to  a  clear  understand-, 
ing  of  the  case  here  reported,  to  which,  without  further  introduction,  we 
now  proceed. 


■Quo  Warranto,  ^c. 


SUPREME    COURT 
FOR  THE  EASTERN  DISTRICT  OF  PENNSYLVANIA. 

DECEMBER  TERM Nisi  PriuS SECOND  PERIOD. 

Before  Hon.  Molton  C.  Rogers,  and  a  Special  Jury. 

The   Commonwealth,   at   the    suggestion   of 
James  Todd,  John  R.  Neff,  F.  A.  Raybold, 
George  W.  M'Clelland,  William  Darling, 
and  Thomas  Fleming, 
vs. 

Ashbel  Green,  William  Latta,  Thomas  Brad- 
ford, Solomon  Allen,  and  Cornelius  C.  Cuy- 
ler. 

MONDAY  MORNING,  March  4,1839—10  o'clock. 

Counsel  for  the  Relators,  George  Wood,  Esq.,  of  New  York  city,  and 
William  M.  Meredith,  and  Josiah  Randall,  EsqWs.  of  Philadelphia. 

Counsel  for  the  Defendants,  William  C.  Preston,  Esq.  of  South  Car- 
olina, and  John  Sergeant,  Joseph  R.  Ingersoll,  and  F.  W.  Hubbell, 
Esq'rs.,  of  Philadelphia. 

Of  the  forty-eight  jurors  summoned,  the  lists  being  struck,  several  indi- 
viduals excused,  and  several  challenged,  but  eleven  men  were  impanelled. 
One  more  being  requisite  to  complete  the  jury,  after  some  delay,  the 
sheriff  was  ordered  to  summon,  and  return  the  next  morning  twelve 
additional  men,  from  whom  a  juror  might  be  selected. 

Court  adjourned. 

TUESDAY  MORNING,  March  5—10  o'clock. 
MR.  Randall's  opening. 
The  sheriff  having,  as  ordered,  made  return  of  twelve  men,  to  supply 
the  deficiency  in  the  former  panel,  one  was  selected  from  the  number,  by 
the  parties  alternately  striking  from  the  list,  until  but  that  one  was  left. 
The  jury  being  now  complete,  each  juror  was  either  sworn  or  affirmed. 
The  following  were  the  names  of  the  jurymen  impanelled. 
Charles  Wagner,  Isaac  Jeanes,  John  Burk, 

James  Simpson,  W.  S.  Greiner,  C.  Barrington, 

L.  Quandale,  Miller  N.  Everly,         S.  Baker, 

George  Mecke,  R.  C,  Dickinson,  E.  R.  Myers. 

Mr.  Randall,  for  the  relators,  then  opened  the  case  as  follows  : 
Mai/  it  please  your  Honour — Gentlemen  of  the  Jury : — Though  this 
action  is  brought  in  the  name  of  the  Commonwealth  of  Pennsylvania,  it 
is  not  to  be  considered  in  the  light  of  a  criminal  proceeding.     Nor  does 


MR.  RANDALL'S  OPENING.  J3 

it  involve  any  question  as  to  the  moral  character  of  the  defendants.  The 
suit,  though,  nominally,  a|^prosecution  by  the  Commonwealth,  is  only  a 
method  which  the  law  has  prescribed,  for  determining  the  private  rights 
of  individuals.  The  object  of  the  writ  of  Quo  Warrcaito  in  this  case  is, 
to  try  whether  certain  persons,  viz.  Dr.  Ashbel  Green,  Rev,  William 
Latta,  Thomas  Bradford,  Esq.,  Solomon  Allen,  Esq.  and  Dr.  Cornelius 
C.  Cuyler  were  on  the  24th  day  of  jNlay,  1S3S,  trustees,  in  a  body  incor- 
porated b}'  the  Legislature  of  Pennsylvania,  as  "  The  Trustees  of  the 
General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America."  In  order  to  understand  this  case,  it  will  be  necessary  to  recur 
to  a  part  of  tlie  history  of  the  Presbyterian  Church. 

The  first  Presbytery  formed  in  the  United  States  was  the  Presbytery 
'of  Philadelphia.  In  the  3-ear  1758,  there  existed  two  Synods,  the  Synod 
of  New  York  and  the  Synod  of  Philadelphia.  In  that  year  they  united, 
forming  an  ecclesiastical  body,  called  the  Sj^nod  of  New  York  and  Phila- 
delphia. This  organization  continued  until  the  year  17SS,  when,  in  the 
place  of  this  general  Synod,  was  instituted  what  was  termed  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America, 
the  first  meeting  of  which  was  held  in  the  city  of  Philadelphia,  on  the 
third  Thursday^of  May,  17S9.  On  the  2Sth  day  of  March,  1799,  the 
Legislature  of  Pennsylvania  passed  an  act  incorporating  certain  persons 
therein  mentioned,  under  the  name  of  "  The  Trustees  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America." 
The  sixth  section  of  this  act  is  as  follows  : 

"That  the  said  corporation  shall  not,  at  any  time,  consist  of  more  than  ei-'^teen  mem- 
bers ;  whereof,  the  said  General  Assembly  may,  at  their  discretion,  us  Oiten  as  they 
shall  hold  their  sessions  in  the  State  of  Pennsylvania,  change  oir^-ih.rci,  in  such  manner 
as  to  the  General  Assembly  shall  seem  proper:  And  the  r..\-pji-ation  aforesaid  shall 
have  power  and  authority,  to  manag-e  and  dispose  ;f  a!i  moneys,  goods,  chattels,  lands, 
tenements,  and  hereditaments,  and  other  eslats  wuatsoever  comniitleJ  to  their  care  and 
trust,  by  the  said  General  Assembly ;  but  in  cases  where  special  instructions  for  the 
management  and  disposal  thereof,  shall  be  civen  by  the  said  General  Assembly  in  wri- 
ting, under  the  hand  of  their  clerk,  it  shall  be  the  duty  oi"  the  said  corporation,  to  act 
according  to  such  instructions :  Provided,  said  instri'Ctions  shall  not  be  repugnant  to  the 
constitution  and  laws  of  the  United  States,  or  to  the  constitution  and  laws  of  this  Com- 
monwealth, or  to  the  provisions,  and  restrictions  in  this  act  contained." 

The  lowest  court  or  judicatory  known  to  the  Presbyterian  Church  is 
the  Session.  This  primar)^  ecclesiastical  body  consists  of  the  pastor,  or 
pastors,  and  the  ruling  elders  of  a  particular  congregation,  such  elders 
being  chosen  from  among  the  male  members  of  the  church,  and  holding 
their  office  for  life.  The  next  higher  court  is  the  Frssbytery,  which 
consists  of  all  the  ministers,  and  one  ruling  elder  froFxi  each  congregation, 
within  a  certain  district,  at  least  three  ministers,  hov/ever,  with  as  many 
elders  as  may  be  present,  being  necessary  to  constitute  the  body.  The 
next  superior  judicatory  is  the  Synod,  which  includes  a  number  of  Pres- 
byteries, at  least  three,  and  like  the  latter  is  composed  of  all  the  ministers, 
and  of  representative  elders,  one  from  each  church,  within  its  bounds. 
The  highest  tribunal  is  the  General  Assembly,  which  is  entirely  a  repre- 
sentative body,  consisting  of  ministers  and  elders  delegated  from  the 
various  Presbyteries ;  the  representation  of  each  being  in  proportion  to 
the  number  of  ministers  belonging  to  it,  each  being  entitled  to  send  at 
least  two  delegates,  iwie  a  minister  and  the  other  an  elder,  and  beyond 
this  number,  one  minister  and  one  elder  for  every  twenty-four  constituent 


14 


PRESBYTERIAN  CHURCH  CASE. 


ministers.  You  will  observe,  then,  that  the  Synods,  as  such,  have  no 
representation  in  the  General  Assembly;  they  are  courts  superior  to  the 
Presbyteries  in  certain  points,  as  in  the  right  of  trying  appeals  from  the 
latter,  yet  they  are  passed  by  in  the  organization  of  the  Assembly,  which 
is  composed  of  the  immediate  representatives  of  the  Presbyteries. 

In  the  year  1S03,  the  Synod  of  Albany  was  created,  by  a  union  of  the 
Presbyteries  of  Oneida,  Albany  and  Columbia;  and  in  1812  this  Synod 
was  divided  into  the  two  Synods  of  Albany  a!id  Geneva,  the  latter  com- 
prising within  its  bounds  the  Presbyteries  of  T)nondaga,  Cayuga  and  Ge- 
neva. The  Synod  of  Geneva  thus  formed,  was  Itself  divided  in  the  year 
1821,  the  Presbyteries  of  Niagara,  Genessee,  Rochester  and  Ontario,  then 
component  parts  of  that  body,  being  erected  into  a  separate  Synod  called 
the  Synod  of  Genessee.  In  the  year  1825,  the  Synod  of  Pittsburgh  was 
divided,  and  the  Presbyteries  of  Grand  River,  Portage,  and  Huron  were 
constituted  the  Synod  of  the  Western  Reserve.  In  1829,  the  Synod  of 
Albany  was  a  second  time  divided,  and  the  Presbyteries  of  Ogdensburg, 
Watertown,  Oswego,  Oneida  and  Otsego,  separated  therefrom,  \yere  con- 
stituted a  new  Synod,  called  the  Synod  of  Utica. 

We  have  thus  traced  the  formation  of  the  Synods  of  Utica,  Geneva, 
Genessee  and  Western  Reserve — the  four  Synods  to  which,  in  the  pro- 
gress of  this  cause,  your  attention  will  be  particularly  directed.  The 
Presbyteries  constituting  these  Synods,  continued  to  act  under  the  Gene- 
ral Assembly  for  many  years,  always  recognised  as  parts  of  the  Presby- 
terian Church.  They  were  represented  in  the  General  Assembl}^,  the  of- 
ficers of  that  body  being  sometimes  chosen  from  their  members,  and 
funds  being  collected  among  them,  and  poured  into  the  common  treasury. 
Thus  matters  continued  until  differences  of  opinion  crept  into  the 
church,  which,  however,  it  was  at  first  hoped  would  not  destroy  its  unity 
or  its  peace.  But  they  increased,  two  conflicting  parties  divided  the  Gene- 
ral Assembly,  and  the  terms  Old  and  New-school  began  to  be  applied  to 
them  respectively;  which  terms  we  shall  employ  for  the  purpose  of  des- 
cription, without,  however,  intending  to  admit,  that  those  whom  we  re- 
present have  in  any  respect  departed  from  the  original  Presbyterian 
faith. 

For  years  these  two  parties  continued  nearly  equal.  In  ISSl,  '32,  '33  and 
'34,  our  Old-school  brethren,  for  as  brethren  we  still  regard  them,  were  a 
minority  in  the  General  Assembly.  In  1835  they  had  a  majority;  in 
1836,  the  New-school  were  again  a  majority.  This  led  to  the  adoption  of 
a  project  by  the  Old-school  party,  to  separate  from  their  brethren  with 
whom  they  could  not  accord;  and  in  May,  1837,  a  meeting  of  that  party 
was  held  in  Philadelphia,  for  deliberation  on  this  project,  and  at  this  meet- 
ing all  the  preliminary  arrangements  were  made  for  a  voluntary  separation 
or  secession.  But  in  the  Assembly  of  that  year,  they  unexpectedly  found 
themselves  a  majority,  and  this  state  of  things  changed  their  whole  plan 
of  action.  At  the  meeting  of  the  Assembly,  a  proposal  of  separation  was 
made  by  the  Old-school,  on  their  own  terms,  securing  to  them  the  name 
and  succession,  and  to  force  a  compliance  with  these  terms,  the  purpose 
of  cutting  off  from  the  church  a  sufficient  portion  of  their  opponents  to 
place  themselves  in  a  decided  majority,  was  held  out  as  a  punishment  to 
be  inflicted  on  the  New-school,  should  they  not  consent  to  the  proposed 
separation.  The  latter  wei'o  willing  to  entertain  the  proposition,  and  to 
enter  into  a  negotiation  on  the  subject;  and  the  terms  which  they  offered 


MR.  KANDALL'S  OPENING.  25 

were,  in  our  opinion,  most  equitable,  but  they  were  refused,  and  the  plan 
of  excision  resolved  upon. 

The  Old-school  were  determined  to  secure  a  future  majority  in  the  Gene- 
ral Assembly.  Their  partizans  were  told  plainly  by  the  gentleman  who 
was  their  masterspirit  in  all  these  movements,  that  unless  they  improved 
the  opportunit}"  then  oflered,  it  might  never  again  occur — that  thereafter 
they  would  be  left  in  a  minority.  Accordingly,  tliey  proceeded  to  the 
work  of  destruction,  and  cut  off  from  the  church  the  four  Synods  above 
named — Utica,  Geneva,  Genessee  and  Western  Reserve;  by  this  act  cast- 
ing out  from  their  communion  more  than  five  hundred  ministers,  five 
hundred  and  ninety-nine  churches,  and  al)out  sixty  thousand  communi- 
cants. In  several  cases,  reverend  fathers  of  the  Churcli,  who  had  reached 
the  patriarchal  limit  of  three  score  and  ten,  were  excluded;  and  this  by  a 
body,  of  which  many  of  the  chief  actors  had  been  but  a  few  years  in  the 
Church.  Dark  as  are  the  pages  of  ecclesiastical  history,  it  has  in  it  no  pa- 
rallel to  these  proceedings. 

The  practical  operation  of  these  exscinding  resolutions  is  the  local  dese- 
cration of  a  whole  region  of  country,  about  two  thirds  of  the  state  of  New 
York,  and  a  portion  of  the  state  of  Oliio.  It  was  purely  local,  or  geogra- 
phical, and  had  the  reverend  gentleman  now  before  us  (Dr.  Green,)  re- 
moved, before  1837,  to  any  part  of  this  expatriated  country,  he  would 
have  been  cut  off  among  the  rest. 

Perhaps  there  is  no  part  of  the  Presbyterian  form  of  church  govern- 
ment more  wisely  and  carefully  guarded,  than  that  which  provides  for 
cutting  off  or  expelling  a  member.  For  every  such  case  a  plan  of  pro- 
ceeding is  circumstantially  prescribed.  There  must  always  be  an  accusa- 
tion of  crime,  witnesses  and  proof;  and  above  all  a  regular  trial,  giving  a 
full  opportunity  to  the  party  accused  to  face  his  accuser,  if  there  be  one, 
and  to  speak  in  his  own  defence.  To  exhibit  fully  to  you,  gentlemen, 
the  care  with  which  this  right  is  guarded,  I  will  advert  to  the  Form  of 
Government  and  Discipline  adopted  by  the  Presbyterian  Church,  for  the 
rules  in  relation  to  this  matter.  Chapter  fourth,  of  the  Book  of  Discipline, 
is  devoted  to  the  subject  o^  '■'^  Actual  Process.'^  Some  of  its  provisions  I 
will  read. 

[Mr.  Randall  then  read  different  parts  of  the  chapter  referred  to,  as 
also  of  the  succeeding  one,  which  prescribes  the  form  of  '■^Process  against 
a  Bishop  or  Minister j'^  to  show  how  precise  and  strict  were  the  rules  on 
this  point.  We  shall  here  give  merely  an  abstract  of  their  most  important 
parts.  They  provide  for  two  modes  in  which  an  offence  may  be  brought 
before  a  judicatory — by  an  individual  appearing  as  accuser  ;  or  by  com- 
mon fame;  enjoin  great  caution  in  receiving  accusations  from  malicious, 
interested  and  otherwise  improper  persons;  require  a  copy  of  the  charge, 
with  the  names  of  the  witnesses  to  be  given  to  the  accused,  and  notice  to 
all  parties  concerned;  that  the  trial  shall  be  put  off  until  the  meeting  of 
the  judicator}^  next  succeeding  that  at  which  the  accusation  is  preferred; 
that  the  charge  shall  be  made  with  all  possible  certainty  as  to  time,  place 
and  circumstances;  and  that  the  trial  shall  be  fair  and  impartial,  the  wit- 
nesses being  examined  in  the  presence  of  the  accused,  who  is  permitted 
to  question  them;  and  prescribes  the  manner  and  degree  of  punishment 
to  be  inflicted,  whether  admonition,  rebuke,  or  exclusion.    Process  against 


IQ  PRESBYTERIAN  CHURCH  CASE. 

a  Gospel  minister  is  required  always  to  be  entered  before  the  Presbytery 
of  which  he  is  a  member.] 

These  are  tbe  provisions  of  the  Book  of  Discipline;  and  how  different 
were  the  proceedings  in  the  case  before  us  ?  Here  there  was  no  accuser, 
no  accusation.  Notice  was  not  given  to  the  parties  thus  discipliwed.  In 
fact,  the  first  news  carried  to  the  great  mass  of  Presbyterians  who  inhabit 
the  proscribed  districts — the  first  information  on  the  subject  which  readied 
their  ears  was,  that  they  had  been  cut  off,  excluded  from  the  communion 
of  their  church.  Even  the  names  of  the  individuals  who  moved  and 
seconded  one  of  the  exscinding  resolutions  are  not  recorded  in  the  pub- 
lished minutes  of  the  Assembly. 

The  ground  for  these  proceedings  of  excision,  upon  which  the  Old- 
school  party  rely,  is  the  unconstitutionality  of  a  certain  "  Plan  of  Union," 
entered  into  in  the  year  1801,  between  the  General  Assembly  of  the 
Presbyterian  Church,  and  the  General  Association  of  the  State  of  Con- 
necticut; a  plan  by  which  as  they  contend,  Congregationalists  have  been 
received  into  the  Presbyterian  communion,  and  under  the  aid  of  which, 
they  allege  the  four  exscinded  Synods  to  have  been  formed.  But  we 
vshall  show  you  that  this  was  only  a  plan  of  fellowship,  of  the  same  kind 
as  those  formed  with  the  General  Associations  of  New  Hampshire,  Ver- 
mont, and  Massachusetts,  the  Associated  Reformed  and  Dutch  Reformed 
Churches,  both  before  and  after  the  plan  of  union  of  ISOl,  and  that  not  a 
single  elder,  minister,  church,  or  Presbytery  has  been,  or  could  be  admit- 
ted under  its  operation. 

The  Plan  of  Union  authorized  a  Presbyterian  minister  to  preach  to  a 
Congregational  church,  and  in  case  of  dispute  between  the  pastor  and  his 
people,  authorized  a  voluntary  tribunal  to  adjust  it  by  arbitrament.  But 
it  could  in  no  manner  effect  or  operate  upon  the  admission  of  a  minister 
or  church  into  the  Presbytery,  Synod  or  General  Assembly;  the  two 
subjects  had  no  connexion.  Under  the  plan  a  small  proportion  of  minis- 
ters were  settled  over  Congregational  churches;  that  number  has  been, 
and  is,  yearly  diminishing,  and  in  the  three  exscinded  Synods  of  New 
York,  is  now  almost  extinct.  Thus,  gentlemen,  you  will  perceive,  that 
the  General  Assembly  in  ISOl,  authorize  Presbyterian  ministers  to  preach 
to  Congregational  churches,  and  in  1837  expel  them  for  obeying  their 
own  resolution,  and  to  increase  the  unequalled  obliquity  of  the  act,  they 
proceed 'to  exscind  every  minister,  communicant,  or  church,  that  respec- 
tively may  live  or  be  located  within  the  bounds  of  the  Synod  where  a 
Presbyterian  minister  has,  in  obedience  to  their  own  authority,  preached 
to  a  Congregational  church. 

We  shall  further  exhibit,  gentlemen,  the  unjust  effect  of  the  exscinding 
acts.  The  Synods  have  local  bounds.  Under  the  practical  operation, 
therefore,  of  these  resolutions,  it  becomes  a  crime  for  a  Presbyterian  to 
live  within  the  ])roscribed  districts.  The  mere  circumstance  of  residence 
makes  an  individual,  or  ecclesiastical  body,  heretical  or  otherwise.  While 
a  minister,  who  had  entered  into  the  communion  of  the  church,  and  re- 
ceived his  ordination  within  the  bounds  of  one  of  those  Synods,  but  who 
had  removed  to  some  other  district,  before  the  excision,  remains  in  good 
standing,  another,  ordained  by  a  body  still  acknowledged  as  strictl}'^  Pres- 
byterian, has  by  entering  the  infected  region,  after  the  excision,  lost  the 
right  of  fellowship.     And  the  General  Assembly  of  1S37  did  not,  with 


MR.  RANDALL'S  OPENING.  17 

any  consistency,  carry  out  its  plan  of  operation,  into  every  case  to  which 
it  was  legitimately  applicable.  At  one  fell  swoop  these  four  Synods  were 
excluded,  while  other  bodies,  equally  obnoxious  to  the  charges  brought 
against  them,  were  tiot  touched,  and  still  remain  in  full  communion.  The 
Synods  of  South  Carolina  and  Georgia  should  have  been  exscinded,  if  the 
Old-school  party  had  wished  to  be  consistent  and  impartial.  The  Synods 
of  Pittsburg  and  New  Jersey  equally  deserved  the  same  fate.  And  the 
parent  Synod  of  Albany  was  suffered  to  escape,  when  obnoxious  to  the 
very  charges  under  which  its  offspring  was  cut  off.  The  case  of  the  Sy- 
nod of  the  Western  Reserve  is  still  more  extraordinary.  It  was  erected 
out  of  the  Pittsburg  Synod,  and,  in  the  first  instance,  included  what  is  now 
the  Synod  of  Michigan.  In  the  course  of  time  the  Synod  of  Michigan 
was  ci-eated,  and  while  the  Synod  of  the  Western  Reserve  was  cut  off, 
those  of  Pittsburg  and  Michigan  were  left  untouched.  The  Assembly 
first  abrogated  the  Plan  of  Union,  and  then  declared,  that  this  plan  having, 
been  unconstitutional  and  void  from  the  beginning,  no  rights  had  ever 
been  acquired  by  it;  and  therefore  that  the  four  Synods,  which  were  alleg- 
ed to  have  been  formed  under  its  operation  had  never  been  parts  of  the 
Presbyterian  Church.  Yet  the  same  consequences  were  not  visited  on  other 
Synods,  standing  in  precisely  the  same  situation.  If  any  circumstance 
was  wanting  to  render  this  proceeding  more  unjust,  it  was  that  the  Gene- 
ral Assembly  had,  in  1835,  repealed  prospectively  the  Plan  of  Union  of 
1801,  reserving  intermediate  rights  acquired  under  it. 

Thus  far  the  work  of  excision  was  com.plete;  but  it  was  necessary  to 
extend  the  operation  of  the  act  into  the  Assembly  of  1838,  in  order  to 
make  it  of  any  avail.  It  is  the  duty  of  the  clerks  of  that  body,  who  con, 
tinue  in  office  from  year  to  year,  during  the  pleasure  of  the  Assembly, 
as  a  Committee  of  Commissions,  to  examine  the  commissions  of  the  mem- 
bers, and  report  at  the  opening  of  the  session,  those  duly  elected.  They 
are  in  this  matter,  but  ministerial  or  executive  officers,  bound  to  act  ac- 
cording to  the  constitution  and  laws  of  the  Church.  It  was  feared  that 
the  clerks  of  1837,  in  assisting  in  the  organization  of  the  next  General 
Assembly,  might  refuse  to  acknowledge  the  legality  of  the  resolutions  of 
that  year,  excluding  a  part  of  the  constituency  of  the  Assembly,  and 
might  receive  the  commissions  of  delegates  coming  from  within  the 
bounds  of  the  exscinded  Synods.  A  pledge  was  therefore  required  from 
these  clerks,  that  they  would  carry  out  the  illegal  acts  of  1837,  in  the 
new  organization  of  1838.  But  no  minute  of  this  proceeding — of  this 
pledge  demanded  and  given,  is  to  be  found  upon  the  published  minutes 
of  the  Assembly  of  1837. 

At  the  time  appointed  in  1838,  commissioners  from  the  various  Pres- 
byteries in  the  United  States,  including  those  coming  from  the  four  ex- 
scinded Synods,  met  as  usual,  in  this  city.  The  latter,  with  the  resty 
presented  their  commissions  to  the  Stated  and  Permanent  Clerks,  and 
demanded  that  their  names  should  be  enrolled.  But  these  officers  had 
already  been  pledged  to  a  course  forbidding  the  reception  of  these  com- 
missions; and  they  accordingly  refused. 

Next,  all  the  commissioners  met  together  in  the  Seventh  Presbyterian 
church — the  place  appointed  for  the  meeting  of  the  Assembly  of  1838. 
It  was  the  duty  of  Dr.  Elliott,  the  Moderator  of  the  last  year,  to  preach  a 
sermon  at  the  openin'g-of  this  Assembly,  and  preside  during  its  organiza- 

3 


18  PRESBYTERIAN  CHURCH  CASE. 

tion,  until  the  election  of  a  new  Moderator.  After  the  customary  reli- 
gious services,  he  accordingly  took  the  chair.  When  the  body  was  about 
to  be  organized,  Dr.  Patton,  a  commissioner  from  the  Third  Presbytery 
of  New  York,  rose,  stating  that  he  wished  to  offer  certain  resolutions 
which  he  held  in  his  hand.  The  Moderator  declared  him  out  of  order, 
Dr.  Patton  appealed  from  his  decision,  and  the  Moderator  declared  the 
appeal  also  out  of  order,  a-nd  refused  to  put  the  question  upon  it  to  the 
house,  saying  that  the  first  business  in  order  was  the  report  of  the  clerks 
upon  the  roll.  Dr.  Patton  then  took  his  seat,  and  the  clerks  proceeded 
with  their  report.  This  being  concluded,  the-Moderator  announced  that, 
if  there  were  any  commissioners  present  whose  names  had  not  been 
enrolled,  that  was  the  time  for  them  to  present  their  commissions.  Upon 
this  call.  Dr.  Mason,  also  a  delegate  from  the  Third  Presbytery  of  New 
York,  rose,  and  holding  in  his  hand  the  commissions  from  the  exscinded 
Synods,  tendered  them  to  the  Moderator,  informing  him  that  they  had 
been  presented  to  the  clerks,  and  by  them  refused,. and  moved  that  the 
roll  should  be  completed  by  the  addition  of  the  names  contained  in  these 
commissions.  The  Moderator  declared  this  motion  also  out'  of  order, 
though  it  was  in  answer  to  his  own  call,  and  though  the  report  upon  the 
roll  had  been  then  concluded.  Dr.  Mason  respectfully  appealed  from  the 
decision;  his  appeal  was  seconded,  but  the  Moderator,  as  before,  declared 
it  out  of  order,  and  declined  putting  the  question  to  the  house,  that  it 
might  judge  of  the  correctness  of  his  decision. 

Under  these  circumstances.  Dr.  McDowell  and  Mr.  Krebs,  acting  as 
the  Committee  of  Commissions,  having  violated  their  duty;  and  Dr. 
Elliott,  as  Moderator,  having  upheld  them  in  their  illegal  course,  and 
created  himself  an  autocrat,  I  use  the  term  with  great  respect,  exercising 
the  illimitable  power  of  determining  every  question,  and  every  right, 
without  admitting  any  appeal  from  his  decision  to  the  house,  of  which 
they  all  were  but  ministerial  officers,  it  became  absolutely  necessary  to 
depose  these  officers,  in  order  to  secure  a  constitutional  organization  of 
the  Assembly.  Accordingly,  at  this  period  the  Rev.  John  P.  Cleaveland, 
a  commissioner  from  the  Presbytery  of  Detroit,  rose,  and  stating  the  diffi- 
culty that  had  occurred,  and  the  necessity  that  a  constitutional  organiza- 
tion should  be  then  and  there  effijcted,  moved  that  Dr.  Beman,  of  the 
iPresbytery  of  Troy,  should  be  temporary  Moderator,  and  put  the  ques- 
tion to  the  commissioners  present.  The  motion  was  almost  unanimously 
carried,  there  being,  however,  a  few  votes  in  the  negative.  The  Assem- 
bly was  then  constituted,  and  Dr.  Fisher  being  chosen  Moderator,  and  Dr. 
E.  Mason  and  the  Rev.  E.  W.  Gilbert,  clerks,  adjourned  to  the  first  Presby- 
terian church  of  this  city,  where  it  sat  in  the  regular  discharge  of  its  ordi- 
nary duties  for  nearly  two  weeks. 

We  shall  contend  that  the  original  excision  of  the  four  Western  Synods 
was  void  and  unlawful,  and  without  precedent;  that  the  Rev.  Dr.  Elliott 
had,  in  attempting  to  carry  into  effect,  in  the  organization  of  the  Assenj- 
bly  of  1S3S,  the  illegal  acts  of  the  Assembly  of  1837,  forfeited  his  right  to 
the  Moderator's  chair;  in  short,  that  there  was  an  imperative  necessity 
for  his  removal,  as  also  for  the  removal  of  the  clerks,  who.  equally  with 
him,  had  usurped  an  unconstitutional  authority. 

The  General  Assembly  was  organized  as  I  have  described,  and  held  its 
session  in  the  First  Presbyterian  Church,  and  in  the  course  of  its  proceed- 


MR.  RANDALL'S  OPENING.  19 

ings,  did,  on  the  twenty-fourth  of  May,  1838,  according  to  the  provisions 
of  the  section  of  their  charter  of  incorporation,  elect  six  trustees,  viz: 
James  Todd,  Frederick  A.  Raybold,  George  W.  McClelland,  William  Dar- 
ling, Thomas  Fleming,  and  John  R.  Nefl",  respectively,  in  the  place  of 
Dr.  Ashbel  Green,  William  Latta,  Thomas  Bradford,  Solomon  Allen,  Dr. 
Cornelius  C.  Cuyler,  and  George  C.  Potts,  The  question,  gentlemen, 
that  you  are  to  decide  is,  whether  the  gentlemen  last  mentioned  were 
lawfully  removed  from  their  places  by  such  election — whether  they  have 
a  right  to  exercise  the  offices  which  they  continue  to  hold  and  exercise. 
'In  other  words,  you  have  to  decide,  whether  the  Assembly  constituted, 
as  above  explained,  which  met  in  the  First  Presbyterian  Church,  or  the 
body  which  remained  in  the  Seventh  Presbyterian  Church,  was  the  true 
and  only  General  Assembly. 

One  feature  of  this  case,«gentlemen,  I  hope  will  be  remembered  during 
this  inquiry.  Our  object  is  to  preserve  the  unity  of  the  Church.  We  do 
not  deny  the  rights  of  our  opponents;  but  we  deny  their  power  to  exclude 
from  the  communion  of  the  church,  without  charge,  accusation,  or  trial, 
every  individual  within  the  bounds  of  the  four  exscinded  Synods.  We 
come  into  court  reluctantly,  and  our  effort  is,  not  to  take  away  the  rights 
of  others,  but  to  preserve  our  own  inviolate. 


20 


TESTIMONY  FOR  THE  RELATORS. 


Mr.  Randall,  having  concluded,  proceeded  to  read  the  pleadings  in 
the  case,  of  which  the  following  is  an  abstract: 

The  suggestion,  verified  by  the  affidavit  of  oiie  of  the  relators,  Frede- 
rick A.  Raybold,  Esquire,  on  which  the  writ  was  issued,  sets  forth  that 
the  defendants  have  exercised,  since  the  twenty-fourth  day  of  May,  1S38, 
and  do  still  exercise  the  franchises  and  privileges  of  trustees  of  the  Gen- 
eral Assembly,  without  lawful  authority,  since  on  the  day  mentioned,  the 
relators  were  duly  elected  to  that  office  ;  and  prays  that  the  said  defen- 
dants may  be  made  to  answer,  by  what  warrant  they  .claim  their  places. 
To  this  Ashbel  Green  pleads  his  appointment  under  the  original  act  of  in- 
corporation, and  Thomas  Bradford,  Cornelius  C.  Cuyler,  and  Solomon 
Allen,  in  separate  pleas,  their  regular  election  by  the  General  Assembly; 
and  all  deny  that  any  thing  has  happened  to  determine  their  offices.  Then 
follow  replications  to  these  pleas,  setting  forth  the  choice  of  James  Todd, 
George  W.  McClelland,  Thomas  Fleming,  and  William  Darling,  in  the 
place  of  the  four  defendants  named,  according  to  the  provisions  of  the  act 
of  incorporation.  The  rejoinders  deny  such  choice,  and  on  this  fact  issue 
is  joined.  William  Latta,  though  his  name  appears  in  the  suggestion  and 
in  the  writ,  was  not  served  with  the  process,  and  takes  no  part  in  the 
pleadings. 

Before  proceeding  to  the  evidence,  it  should  be  mentioned,  that  a  writ- 
ten agreement  between  the  parties  had  provided,  that  the  printed  copies 
of  all  original  documents,  which  were  competent  testimony,  might  be 
given  in  evidence,  without  producing  such  originals.  The  documents 
from  which,  under  this  agreement,  the  most  copious  extracts  were  read, 
were  the  published  Minutes  of  the  General  Assembly,  "The  Assembly's 
Digest,"  and  "  The  Constitution  of  the  Presbyterian  Church,"  containing 
"  The  Confession  of  Faith,  the  Catechisms,  and  the  Directory  for  the 
Worship  of  God  :  together  with  the  Flan  of  Government  and  Discipline, 
as  amended  and  ratified  by  the  General  Assembly,  at  their  session  in  May 
1821;"  references  to  all  which  will  be  understood  after  this  explanation. 

Mr.  Randall  first  offered  in  evidence  the   Charter   of  Incorporation, 
granted  to  the  Presbyterian  Church,  by  the  legislature  of  Pennsylvania. 
(Assem.  Digest, p.  \Q2. J 
"  An  Act  for  incorporatiing  the  Trustees  of  the  Ministers  and  Elders,  constituting 

the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America. 

"  Whereas  tlie  ministers  and  eiders  forming  tlie  General  Assembly  of  tlie  Presbyte- 
rian Clmrcli  of  the  United  States  of  America,  consisting  of  citizens  of  the  State  of  Penn- 
sylvania, and  of  others  of  the  United  States  of  America  aforesaid,  have  by  their  petition 
represented,  that  by  donations,  bequests  or  otherwise,  of  charitably  disposed  persons, 
the/  are  possessed  of  monies  for  benevolent  and  pious  purposes,  and  the  said  ministers 
and  elders  have  reason  to  expect  farther  contributions  for  similar  uses;  but  from  the 
scattered  situation  of  the  said  ministers  and  elders,  and  otiier  causes,  the  said  ministers 
and  elders  find  it  extremely  ditTicult,  to  manage  the  said  funds  in  the  way  best  calcula- 
ted to  answer  the  intention  of  the  donors:  Therefore, 

♦'  Sec.  1.  Be  it  enacted  by  tlie  Senate  and  House  of  Representatives  of  the  Com- 


TESTIMONY  FOR  THE  RELATORS.  21 

mon  wealth  of  Pennsylvania,  in  General  Assembly  met,  and  it  is  hereby  enacted  by  the 
authority  of  the  same,  That  John  Rogers,  Alexander  McWhorter,  Samuel  Stanhope 
Smith,  Ashbel  Green,  William  M.  Tennant,  Patrick  Allison,  Nathan  Irvm,  Joseph 
Clark,  Andrew  Hunter,  Jared  IngersoU,  Robert  Ralston,  Jonathan  R.  Smith,  Andrew 
Bayard,  Elias  Boudinofr,  John  Nelson,  Ebenezer  Hazard,  David  Jackson,  and  Robert 
Smith,  merchant,  and  their  successors  duly  elected  and  appointed  in  manner  as  is  here- 
inafter directed,  be,  and  they  are  hereby  made,  declared  and  constituted,  a  corporation 
and  body  politic  and  corporate,  in  law  and  in  fact,  to  have  continuance  for  ever,  by  the 
name,  style,  and  title  of  "  Trustees  of  the  General  Assembly  of  the  Presbyterian  Church 
in  the  United  States  of  America;  and  by  the  name,  style,  and  title  aforesaid,  shall,  for 
ever  hereafter,  be  persons  able  and  capable  in  law  as  well  to  take,  receive,  and  hold,  all 
and  all  manner  of  lands,  tenements,  rents,  annuities,  franchises,  and  other  hereditaments, 
"which  at  any  lime  or  times  heretofore  have  been  granted,  bargained,  sold,  enfeoffed,  re- 
leased, devised,. or  otherwise  conveyed,  to  the  said  ministers  and  elders  of  the  General 
Assembly  of  the  Presbyterian  Church  of  the  United  States,  or  any  other  person  or  per- 
sons, to  their  use,  or  in  trust  for  them  ;  and  the  same  lands,  tenements,  rents,  annuities, 
liberties,  franchises,  and  other  hereditaments,  are  hereby  vested  and  established  in  the 
said  corporation,  and  their  successors  for  ever,  according  to  the  original  use  and  intent 
for  which  such  devises,  gifts  and  grants  were  respectively  made ;  and  the  said  corpora- 
tion and  their  successors,  are  hereby  declared  to  be  seized  and  possessed  of  such  estate 
and  estates  therein,  as  in  and  by  the  respective  grants,  bargains,  sales,  enfeoffments, 
■  releases,  devises,  and  other  conveyances  thereof,  is,  or  are  declared  limited  and  express- 
ed; also,  that  the  said  corporation  and  their  successors,  at  all  times  hereafter,  shall  be 
capable  and  able  to  purchase,  have,  receive,  take,  hold,  and  enjoy,  in  fee  simple,  or  of 
lesser  estate  or  estates,  any  lands,  tenements,  rents,  annuities,  franchises  and  other  here- 
ditaments, by  the  gift,  grant,  bargain,  sale,  alienation,  enfeoffment,  release,  confirmation 
or  devise,  of  any  person  or  persons,  bodies  politic  and  corporate,  capable  and  able  to 
make  the  same:  And  further,  that  the  said  ministers  and  elders,  under  the  corporate 
name  aforesaid,  and  their  successors,  may  take  and  receive  any  sum  or  sums  of  money, 
and  any  portion  of  goods  and  chatties,  that  have  been  given  to  the  said  ministers  and  el- 
ders, or  that  hereafter  shall  be  given,  sold,  leased,  or  bequeathed,  to  the  said  corporation, 
by  any  person  or  persons,  bodies  politic  or  corporate,  that  is  able  or  capable  to  make  a 
gift,  sale,  bequest,  or  other  disposal  of  the  same;  such  money,  goods,  or  chatties,  to  be 
laid  out  and  disposed  of,  for  the  use  and  benefit  of  the  aforesaid  corporation,  agreeably  to 
the  intention  of  the  donors,  and  according  to  the  objects,  articles,  and  condition  of  thisi 
act. 

»  Sect.  2.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  no  misnomer 
of  the  said  corporation  and  their  successors,  shall  defeat  or  annul,  any  gift,  grant,  devise 
or  bequest,  to  or  from  the  said  corporation,  provided  the  intent  of  the  party  or  parties 
shall  sufficiently  appear  upon  the  face  of  the  gift,  will,  grant,  or  other  writing,  whereby 
any  estate  or  interest,  was  intended  to  pass  to  or  from  the  said  corporation. 

"  Sect.  3.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  said  corpo- 
ration and  their  successors,  shall  have  full  power  and  authority,  to  make,  have,  and  use, 
one  common  seal,  with  such  devise  and  inscription  as  they  shall  think  fit  and  proper; 
and  the  same  to  break,  alter,  and  renew,  at  their  pleasure. 

"  Sect.  4.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  the  said  corpora- 
tion and  their  successors,  by  the  name,  style,  and  title  aforesaid,  shall  be  able  and  capa- 
ble in  law,  to  sue  and  be  sued,  plead  and  be  impleaded,  in  any  court,  or  before  any  judge 
or  justice,  in  all  and  all  manner  of  suits,  complaints,  pleas,  matters,  and  demands,  of 
whatsoever  nature,  kind,  and  form  they  may  be;  and  all  and  every  matter  and  thing  to 
do,  in  as  full  and  effectual  a  manner,  as  any  other  person,  bodies  politic  or  corporate, 
within  this  commonwealth,  may  or  can  do. 

"  Sect.  .5.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  said  corpo- 
ration and  their  successors,  shall  be,  and  hereby  are  authorised  and  empowered,  to  make, 
ordain,  and  establish,  bye  laws  and  ordinances,  and  do  every  thing  incident  and  needful 
for  the  support  and  due  government  of  the  said  corporation,  and  managing  the  funds  and 
revenues  thereof;  Provided,  the  said  bye  laws  be  not  repugnant  to  the  constitution  and 
laws  of  the  United  States,  to  the  constitution  and  laws  of  this  commonwealth,  or  to  this 

"Sect.  6.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  the  said  corpo- 
ration shall  not,  at  any  time,  consist  of  more  than  eighteen  persons:  whereof  the  said 
General  Assembly  may,  i^J.  their  discretion,  as  often  as  they  shall  hold  their  sessions  in 


22  PRESBYTERIAN  CHURCH  CASE. 

the  slate  of  Pennsylvania,  change  one  third,  in  such  manner  as  to  the  said  General  As- 
sembly shall  seem  proper :  And  the  corporation  aforesaid,  shall  have  power  and  authority, 
to  manage  and  dispose  of  all  monies,  goods,  chattels,  lands,  tenements,  and  heredita- 
ments, and  other  estate  whatsoever,  committed  to  their  care  and  trust,  by  the  saidGene-- 
ral  Assembly;  but  in  cases  where  special  instructions,  for  the  management  and  disposal 
thereof,  shall  be  given  by  the  said  General  Assembly  in  writing,  under  the  hand  of  their 
clerk,  it  shall  be  the  duty  of  the  said  corporation,  to  act  according  to  such  instructions; 
Provided,  Ihe  sa'\6  instructions  shall  not  be  repugnant  to  the  constitution  and  laws  of  the 
United  States,  or  to  the  constitution  and  laws  of  this  commonwealth,  or  to  the  provisions 
and  restrictions  in  this  act  contained. 

"  Sect.  7.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  six  members  of 
this  corporation,  whereof  the  president,  or  in  his  absence  the  vice-president,  to  be  one, 
shall  be  a  sufficient  number  to  transact  the  business  thereof,  and  to  make  bye-laws,  rules, 
and  regulations ;  Provided,  that  previous  to  any  meeting  of  the  board  or  corporation, 
for  such  purposes,  not  appointed  by  adjournment,  ten  days  notice  shall  be  previously 
given  thereof,  in  at  least  one  of  the  newspapers  printed  in  the  city  of  Philadelphia :  And 
the  said  corporation  shall  and  may,  as  often  as  they  shall  see  proper,  and  according  to 
the  rules  by  them  to  be  prescribed,  choose  out  of  their  number,  a  president  and  vice- 
president,  and  shall  have  authority  to  appoint  a  treasurer,  and  such  other  officers  and 
servants,  as  shall  by  them,  the  said  corporation,  be  deemed  necessary  ;  to  which  officers 
the  said  corporation  may  assign  such  a  compensation  for  their  services,  and  such  duties 
to  be  performed  by  them,  to  continue  in  office  for  such  a  time,  and  to  be  succeeded  by 
others,  in  such  way  and  manner  as  the  said  corporation  shall  direct. 

"Sect.  8.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  all  questions 
before  the  said  corporation,  shall  be  decided  by  a  plurality  of  votes,  whereof  each  mem- 
ber present  shall  have  one,  except  the  president,  or  vice-president,  when  acting  as  pre- 
eident,  who  shall  have  only  the  casting  voice  and  vote,  in  case  of  an  equality  in  the  votes 
of  the  other  members. 

"  Sect.  9.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  the  said  corpo- 
ration shall  keep  reorular  and  fair  entries  of  their  proceedings,  and  a  just  account  of  their 
receipts  and  disbursements,  in  a  book  or  books  to  be  provided  for  that  purpose ;  and  their 
treasurer  shall,  once  in  a  year,  exhibit  to  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America,  an  exact  state  of  the  accounts  of  the  corpo- 
ration. 

"Sect.  10.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  the  said  cor- 
poration may  take,  receive,  purchase,  possess,  and  enjoy,  messuages,  houses,  lands,  tene- 
ments, rents,  annuities  and  other  hereditaments,  real  and  personal  estate  of  any  amount, 
not  exceeding  ten  thousand  dollars  a  year  in  value,  but  the  said  limitations  not  to  be  con- 
sidered as  including  the  annual  collections,  and  voluntary  contributions,  made  in  the 
churches  under  the  care  of  the  said  General  Assembly.       Cadwalader  Evans,  Jr. 

Speaker  of  the  House  of  Representatives. 

Robert  Hare,  Speaker  of  the  Senate. 

Thomas  Miffj-in,  Governor  of  the  Commonwealth  of  Pennsylvania. 
Approved,        ) 
March  28,  1799.'*  \ 

Next  was  offered  the  Act  of  the  General  Assembly  itself  f^ss.  Dig. 
p.   198.^  prescribing  the  mode  of  making  choice  of  Trustees. 

"  The  mode  of  choosing  the  Trustees  adopted  in  1801. 

"The  General  Assembly  took  into  consideration  the  important  concern  of  voting  for 
Trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States, 
agreeably  to  the  provision  made  in  the  sixth  section  of  the  Act  of  the  Legislature  con- 
stituting the  charter  of  incorporation.  After  maturely  discussing  this  subject,  the  As- 
sembly resolved,  that  it  is  expedient  to  adopt  and  recommend  the  following  system: — 
1.  That  when  this  subject  is  called  up  annually,  a  vote  shall  first  be  taken  whether,  for 
the  current  year,  the  Assembly  will,  or  will  not,  make  any  election  of  members  in  the 
board  of  Trustees.  2.  If  an  election  be  determined  on,  the  day  on  which  it  shall  take 
place  shall  be  specified,  and  shall  not  be  within  less  than  two  days  of  the  time  at  which 
such  an  election  shall  be  decided  on.  3.  When  the  day  of  election  arrives,  the  As- 
sembly shall  ascertain  what  vacancies  in  the  number  of  the  eighteen  Trustees  incorpo- 
rated, have  taken  place  by  death  pr  otherwise;  and  shall  first  proceed  to  choose  otheir 
members  in  their  places.     When  this  is  accomplished,  they  shall  proceed  to  the  triai 


TESTIMONY  FOR  THE  RELATORS. 


23 


whether  they  will  elect  any,  and  if  any,  how  many  of  that  third  of  the  number  of  the 
Trustees  which  by  law  they  are  permitted  to  chano'e,  in  the  followinor  manner:  viz. 
Thelist  of  the  Trustees  shall  betaken,  and  a  vote  be  had  for  a  person  to  fill  the  place  of 
him  who  is  first  on  the  list.  In  votings  for  a  person  to  fill  said  place,  the  vote  may  be 
Civen  either  for  the  person  whn  has  before  filled  it,  or  for  any  other  person ;  if  the  ma- 
jority of  votes  shall  be  given  foi  the  person  who  has  before  filled  it,  he  shall  continue  in 
office  ;  if  the  majority  of  votes  shall  be  given  for  another  person,  this  person  is  a  trustee, 
duly  chosen  in  place  of  the  formei'.  In  the  same  form  the  Assembly  shall  proceed  with 
the  list,  till  they  have  either  changed  one-third  of  the  trustees,  (always  including  in  the 
third  those  who  have  been  elected  by  the  sitting  Assembly  to  supply  the  places  that  be- 
come vacant  by  death  or  otherwise,)  or  by  going  through  the  list,  shall  determine  that 
too  further  alterations  shall  be  made." — Vol.  i.  p.  252. 

The  next  evidence  offered  was  "  The  Constitution  of  the  Presbyterian 
Church  in  the  United  States  of  America  ;  containing  the  Confession  of 
'Faith,  the  Catechisms,  and  the  Directory  for  the  Worship  of  God  ;  to- 
gether with  the  Plan  of  Government  and  Discipline,  as  amended  and  ra- 
tified bv  the  General  Assembly,  at  their  session  in  May,  !821." 

Minutes  1821,  p.  5.  "The  Presbyteries  were  called  tipon  to  report  their  several  de- 
cisions on  the  revised  form  of  government  and  forms  of  process,  sent  down  by  the  last 
As=emblj%  and  their  reports  being  read,  were  committed  to  Dr.  McDowell  and  Mr. 
Chester  to  ascertain  precisely  the  opinions  of  the  sevefal  Presbyteries  on  the  subject, 

and  report  their  decision  to  this  Assembly. 

********** 

"The Committee  appointpd  to  ascertain  the  decisions  of  the  several  Presbyteries  on 
the  subject  of  the  revised  form  of  government,  and  forms  of  proce-ss,  and  the  amend- 
ments to  the  directory,  sent  down  by  the  last  Assembly,  reported,  and  their  report  being 
read,  was  adopted,  and  is  as  follows,  viz. 

"  That  there  are  connected  with  this  Assembly,  sixty-two  Presbyteries  ;  that  there- 
fore the  affirmative  vote  of  thirty-two  Presbyteries  is  necessary  to  make  any  one  article 
binding;  that  forty-five  Presbyteries  have  reported  to  the  Assembly  their  decisions  on 
each  chapter,  section,  and  article;  that  from  these  reports  it  appears  that  most  of  the 
articles  have  been  adopted  unanimously,  and  that  every  chapter,  section,  and  article,  has 
been  adopted  bya  majority  of  the  wholenumber  of  Presbyteries;  that  the  smallest  num- 
ber of  votes  given  for  any  one  article  is  thirty-seven  ;  that,  therefore,  the  whole  of  the 
amendments  sent  down  by  the  last  Assembly  to  the  Presbyteries  is  ratified,  and  becomes 
a  part  of  the  Constitution.'* 

Before  the  time  when  this  constitution  was  thus  approved  by  the  Pres- 
byteries, the  Synod  of  Geneva  had  been  formed;  and,  at  that  period, 
comprised  the  Presbyteries  of  Geneva,  Onondaga,  Cayuga,  Bath,  Ontario, 
Niagara,  Genessee,  and  Rochester.  The  Presbyteries  of  Oneida,  St. 
Lawrence,  and  Otsego,  now  belonging  to  the  Synod  of  Utica,  were  then 
parts  of  the  Synod  of  Albany  ;  and  the  Presbyteries  of  Grand  River  and 
Portage,  now  parts  of  the  Synod  of  Western  Reserve,  at  that  time  belong- 
ed to  the  Synod  of  Pittsburgh.  Therefore  of  the  twenty-eight  Presby- 
teries at  present  contained  in  the  exscinded  Synods,  there  w^xq  fourteen  in 
existence  at  the  period  when  this  amended  constitution  was  adopted,  to  all 
which,  that  constitution  was  of  course  sent  down  for  their  approval.  (See 
Minutes. ) 

The  follov/ing  sections  of  the  form  of  Govcrnnient  were  next  offered  : 

"  Cha'p.  X.  {Of  the  Presbytery.)  Sect.  2.  A  Presbytery  consists  of  all  the  ministers 
and  one  ruling  elder  from  each  congregation  within  a  certain  district. 

"  Sect.  7.  Any  three  ministers,  and  as  many  elders  as  may  be  present,  belonging  to 
the  Presbytery,  being  met  at  the  time  and  place  appointed,  shall  be  a  quorum  competent 
to  proceed  to  business. 

"  Chap.  XL  {Of  the  Synod.)  Sect.  1.  As  a  Presbytery  is  a  convention  of  the 
bishops  and  elders  vvithip  a  certain  district;  so  a  Synod  is  a  convetition  of  the  bishops 


24 


PRESBYTERIAN  CHURCH  CASE. 


and  elders  within  a  larger  district,  includingf  at  least  three  Presbyteries.     The  ratio  of 
the  representation  of  elders  in  the  Synod,  is  the  same  as  in  the  Presbytery. 

"  Sect:  2.  Any  seven  ministers,  uelonging  to  the  Synod,  who  shall  ronvene  at  the 
time  and  place  of  meeting,  with  as  many  elders  as  may  be  present,  shall  be  a  quorum  to 
transact  Synodical  business;  provided  not  more  than  three  of  the  said  ministers  belong 
to.one  Presbytpry. 

'■'Chap.  XII.  (Of  the  General  Assembly.)  Sect.  1.  The  General  Assembly  is  the 
highest  judicatory  of  the  Presbyterian  Church.  It  shall  represent  in  one  body,  all  the 
particular  churches  of  this  denomination;  and  shall  bear  the  title  of  The  GeneraIt 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America. 

"  Sect.  2.  The  General  Assembly  shall  consist  of  an  equal  delegation  of  bishops  and 
eiders  from  each  Presbytery,  in  the  following  proportion :  viz.  each  Presbytery  consisting 
of  not  more  than  nine  ministers,  shall  send  one  minister  and  one  elder;  each  Presbytery 
consisting  of  more  than  nine  ministers,  and  not  more  than  eighteen,  shall  send  two 
ministers  and  two  elders;  and  in  the  like  proportion  for  every  nine  ministers  in  any 
Presbytery.  And  these  delegates  so  appointed  shall  be  styled,  Commissioners  of  the 
General  Assembly.''^ 

Mill.  1833,  p.  486.  This  last  section  altered,  with  the  approval  of  a  majority  of  the 
Presbyteries,  in  the  year  1833,  so  as  to  read  thus:— 

"  I'he  G<^neral  Assembly  shall  consist  of  an  equal  delegation  of  bishops  and  elders 
from  each  Presbytery,  in  the  following  proportion,  viz.  each  Presbytery  consisting  of  not 
more  than  twenty-four  ministers,  shall  send  one  minister  and  one  elder;  and  each  Pres- 
bytery consisting  of  more  than  twenty-four  ministers,  shall  send  two  ministers  and  two 
elders,  and  in  like  proportion  for  every  twenty-four  ministers  in  every  Presbytery;  and 
these  delegates  so  appointed  shall  be  styled,  "  Commissioners  to  the  General  Assembly.^ 

"  Sect.  3.  Any  fourteen  or  more  of  these  commissioners,  one  half  of  whom  shall  be 
ministers,  being  met  on  the  day,  and  at  the  place  appointed,  shall  be  a  quorum  for  the 
transaction  of  business." 

Mr.  Randall  next  read  extracts  from  the  minutes  of  the  Assembly, 
showing  the  time  and  manner  of  the  creation  of  the  four  Synods  of  Gene- 
va, Genessee,  Western  Reserve,  and  Utica. 

Min.  1803,  p.  17.  "  Resolved,  that  the  Presbyteries  of  Albany,  Oneida  and  Colum- 
bia, be,  and  they  hereby  are,  constituted  and  formed  into  a  Synod  ;  to  be  known  by  the 
name  of  the  Synod  of  Albany." 

Min.  1812.  p.  23.  "The  Synod  of  Albany  having  made  application,  that  the  said 
Synod  should  be  divided  in  the  following  manner  :"  viz.  (The  Presbyteries  of  London- 
derry, Columbia,  Albany  and  Oneida,  forming  the  Eastern  Division,  under  the  name  of 
the  Synod  of  Albany.)  "That  the  Presbyteries  of  Onondaga,  Cayuga  and  Geneva, 
form  the  Western  Division,  and  be  constituted  a  Synod  ;  to  be  called  and  known  by  the 
name  of  the  Synod  of  Geneva;""  the  Assembly 

"  Resolved,  That  the  Synod  of  Albany  be  divided  as  above  ;  and  it  hereby  is  accord- 
ingly divided." 

Min.  1821,  p.  10.  "The  Synod  of  Geneva  requested  that  said  Synod  be  divided  in 
the  following  manner,  and  their  request  was  granted,  viz  : 

"  That  the  Presbyteries  of  Niagara,  Genessee,  Rochester,  and  Ontario,  be  erected 
into  a  Synod  to  be  known  by  the  name  of  the  Synod  of  Genessee,  c^-c." 

Min.  1825,  p.  263.     On  application  made  to  erect  a  new  Synod,  &c.  the  Assembly 

"  Resolved,  That  the  Presbyteries  of  Grand  River,  Portage,  and  Huron,  be,  and  they 
hereby  are  detached  from  the  Synod  of  Pittsburgh,  and  constituted  a  new  Synod,  to  be 
designated  by  the  name  of  Synod  of  the  Wester7i  Reserve." 

Min,  1829,  p.  373.     On  application  of  the  Synod  of  Albany,  the  Assembly 

"  Resolved,  That  agreeably  to  the  request  of  the  Synod,  the  Presbyteries  of  Ogdens- 
burgh,  Watertown,  Oswego,  Oneida,  and  Otsego,  are  hereby  constituted  a  New  Synod, 
to  be  called  the  Sijnod  of  Ulica." 

The  testimony  next  offered,  consisted  of  extracts  from  the  minutes, 
showing  the  frequent  recognition  of  these  Synods,  and  of  the  Presbyte- 
ries composing  them,  by  the  General  Assembly;  their  having  contributed 
to  the  church  funds,  &c.  As  the  fact  of  o^ecognition  was  not  contested 
by  the  defendants,  and  as  most  of  the  passages  cited  to  prove  it,  and  the 


TESTIMONY  FOR  THE  RELATORS.  25 

other  points  here  connected  with  it,  were  of  the  same  general  nature,  in 
many  cases,  mere  references  are  given. 

Min.  1801,  pp.  4,  5. — "  The  delegates  appointed  by  the  last  Assembly  to  attend  the 
General  Association  of  the  State  of  Connecticut,  made  their  report,  which  was  read  as 
follows,  viz. 

"The  delesrates  from  the  General  Assembly  to  the  General  Association  of  Connecti- 
cut, report,  that  they  have  attended  according  to  appointment  through  the  whole  course 
of  the  sessions  of  the  General  Association.  That  besides  the  business  peculiar  to  the 
churches  of  Connecticut,  the  General  Association  appointed  a  committee  to  confer  with 
a  committee  that  may  be  appointed  by  the  General  Assembly,  on  measures  which  may 
promote  union  among  the  inhabitants  of  the  new  settlements  and  the  missionaries  to 
those  settlements,  as  appears  by  the  inclosed  paper.  The  General  Association  also 
voted  that  inslructions  be  given  by  the  trustees  of  the  Missionary  Society,  to  their  mis- 
sionaries, to  avoid  every  thing  that  may  interrupt  peace  in  the  new  settlements,  among 
fhose  that  are  attached  to  the  Presbyterian  and  Congregational  forms  of  government. 

"  Your  delegates  further  report,  that  they  were  received  and  treated  with  exceeding 
great  cordiality  and  Christian  friendship,  and  that  the  Association  expressed  high  satis- 
faction with  the  connexion  subsisting  between  themselves  and  the  General  Assembly  of 
•  the  Presbyterian  Church,  and  believed  that  it  would  have  a  happy  tendency  to  promote 
the  interest  of  the  Redeemer's  kingdom. 

(Signed,)  Jonathan  Edwards, 

Asa  Hillyer, 
Jonathan  Freman." 

Id.  p.  18. — "The  Rev.  Peter  Fish,  of  the  Presbytery  of  Albany,  was  appointed  a 
missionary  for  six  months,  in  the  county  of  Oneida  and  its  vicinity." 

Min.  1803,  p.  16. — "  The  Assembly  called  on  the  Presbyteries,  which  are  required  to 
make  annual  collections  for  missionary  purposes,  to  report  how  far  they  have  complied 
with  the  orders  of  the  General  Assembly  on  this  subject.  It  appeared  in  consequence, 
that  the  Presbyteries  of  Oneida,  Albany,  Columbia,  &c.,  have  substantially  done  their 
duty,  in  reference  to  this  collection." 

Min.  1804,  p.  69. — "  List  of  churches  belonging  to  the  Synod  of  Albany,  &c.,  which 
have  contributed  to  the  contingent  fund  of  the  General  Assembly,  from  June  1st,  1803, 
to  May  21st,  1804.  (The  fund  expended  in  the  course  of  the  year,  for  missionary,  and 
other  purposes;  so  called  to  distinguish  it  from  the  permanent  fund,  the  principle  of 
which  is  kept  entire.) 

"Presbytery  of  OneicZa, $28  77^ 

"  Columbia,  -  -  -  -  -         12  01^ 

Albany, 16  25  &c." 

Min.  1805,  p.  96. — "  The  committee  to  whom  were  referred  the  reports  of  the  Pres- 
byteries on  the  Amendments  of  the  Constitution,  reported,  that  the  Presbytery  of  Onei- 
da has  approved  all  the  proposed  amendments." 

Id.  pp.  107,  8. — "  Payments  into  the  Contingent  Fund. 

"Presbytery  of  Oneida,  .....        31  33  &c." 

Min.  1807,  p.  173. — Oneida  contributes  to  contingent  and  missionary  funds  $24. 
Min.  1808,  pp.  188,  9,  197.     Min.  1809,  p.  220. 
Id.  p.  227. — View  of  churches  under  the  care  of  the  Assembly. 

Presbytery  of  Oneida,  7  Ministers,  13  Congregations. 

"  Geneva,  14         "  12  " 

Id.  pp.  230,  252.    Min.  1810,  pp.  278,  288.— Contributions  to  Education,  Missionary, 
&c.  funds. 
Min.  1811,  p.  353. — Statement  of  Contributions. 

"Presbytery  of  Oneida,^  -  -  -  *  -        $96  50 

Geneva,       -  -  -  .  -  28  81 

Onondaga,        -  -  -  -  -  35  00 

Cayuga,      .....  22  57." 

Min.  1812,  p.  30.     Min.  1813,  pp.  30,  85. 

Id.  p.  101. — Acknowledgment  of  monies  received  from  the  Synod  of  Geneva  for  the 
Theological  Seminary  at  Princeton. 
Min.  1814,  pp.  108, 9,  TU,  154,  6. 

4 


26 


PRESBYTERIAN  CHURCH  CASE. 


Id.  p.  221. — Contributions  to  Theological  Seminary. 

"Received  of  Rev.  Jabez  Chadwick,  the  donation  of  Col.  John  Lincklaen  of  Gaze- 
novia,  -  -  -  -  -  -  $  100. 

"  Received  of  Rev.  Alexander  Monteith,  -  -  -  70." 

Min.  181.5,  ]i.  2.50. — Contributions. 

Presbytery  of  Cayuga,  -  -  -  •  $  30  00 

Utica,        -  -  -  -  -      819  90." 

Id.  p.  267.     Mill.  1816,  pp.  318,  367.     Min.  1817,  p.  59. 

Id.  p.  9.—"  The  committee  appointed  to  prepare  a  minute,  stating  the  attention  which 
the  Presbyteries  appear  to  have  paid  to  the  resolutions  of  the  Assembly,  in  relation  to 
the  selection  of  youni:r  men  for  the  gospel  ministry,  and  providing  funds  for  their  educa- 
tion, reported  ;  and  their  report  being  read,  was  adopted,  and  is  as  follows,  viz. 

"Tiiat  from  the  voles  of  the  As>embly,  it  appeared  the  Presbyteries  of  Onondaga, 
Geneva,  Oneida,  Cayuga,  Columbia,  *  *  *,  Grand  River,  *  *  ^  had  fully  attended 
to  the  recommendations  of  the  Assembly  on  the  subject." 

Min.  1818,  p.  27. — "  The  following  persons  were  appointed  a  Board  of  Missions,  for 
the  ensuing  year,  viz. 

"  Of  the  Synod  of  Geneva,  Rev.  D.  Higgins. 

"  Albany,  Rev.  Jas.  Coe,  D.  D.  &c." 

Id.  pp.  59,  61,  2,  3. 

Id.  p.  84. — "  Theological  Seminary— Contingent  fund. 

"  28,  Of  Rev.  W.  Hanford,  per  Rev.  Jos.  Treat,  collected  in  Grand  River  Presby- 
tery, ------  ^S»71  38. 

Min.  1819,  p.  158.—"  The  Presbyteries  were  called  upon  to  report  on  the  subject  of 
the  overture  sent  down  by  the  last  General  Assembly,  proposing  an  alteration  in  the 
Constitution,  in  the  following  words: 

"  1.  Resolved,  That  it  be  recommended  to  the  Presbyteries  to  alter  the  ratio  of  re- 
presentation, by  substituting  Chapter  XL  Section  2,  the  word  nine  for  the  word  six, 
and  the  word  eighteen  in  place  of  the  word  twelve. 

"  2.  That  the  Presbyteries  be  required  to  send  up  to  the  next  General  Assembly 
their  respective  decisions  on  the  question  submitted  to  their  consideration  in  the  above 
resolution.  .         .  . 

"  Reports  on  this  subject  from  the  following  Presbyteries  were  received  in  writing, 
declaring  their  concurrence  in  the  proposed  amendments,  viz.  Niagara,  Ontario,  Onon- 
daga, Cayuga,  Geneva,  Bath,  &,c.,  *  *  Portage,  Grand  River,  &c.  Whereupon  the 
General  Assembly  did,  and  hereby  do  declare,  that  the  above  mentioned  amendment  of 
the  Constitution  has  been  duly  and  constitutionally  made." 

Min.  1820,  pp.  306,  345,  6,  7,  8,  358,  9. 

Min.  1821,;;.  11.— A  committee  of  three  appointed  in  each  Synod,  to  superintend 
the  printing  of  the  Confession  of  Faith,  and  Constitution  of  the  Church. 
"  Of  the  Synod  of  Genesee.  I  "  Of  the  Synod  of  Geneva.  ■ 

Rev.  Ebenezer  Fitch,  D.  D.,  |  Rev.  Henry  Axtell, 

Rev.  Comfort  Williams,  I  Rev.  Henry  Dwight, 

Rev.  Calvin  Colton."  |  Rev.  Derick  C.  Lansing." 

Id.  p.  16.—"  It  being  the  order  of  the  day,  the  Assembly  proceeded  to  consider  the 
appeal  of  Mr.  Jabez  Spicer,  from  the  decision  of  the  Synod  of  Geneva,  by  which  Mr. 
Spicer  had  been  deposed  from  the  Gospel  ministry.  The  documents  on  the  subject 
were  read  and  the  parties  were  heard.  After  a  considerable  discussion,  the  following 
resolution  was  adopted,  viz. 

"  Resolved,  That  the  appeal  of  Mr.  Spicer  be  sustained,  on  the  ground  that  the  sen- 
tence pronounced  upon  him  was  disproportioned  to  his  crime;  it  not  appearing  substan- 
tiated that  he  was  ffuilty  of  more  than  a  sinsfle  act  of  prevarication  :  while,  therefore, 
the  Assembly  express  their  entire  disapprobation  of  the  conduct  of  Mr.  Spicer,  as  un- 
becomintr  a  Christian,  and  Christian  minister,  they  reverse  the  sentence  of  deposition 
passed  upon  him  by  the  Presbytery,  and  direct  that  after  suitable  admonitions  and  ac- 
knowledcrments,  he  be  restored  to  the  ministerial  office." 

Id  pp.  31,  2,  39,  41.— Contributions  of  Presbyteries  within  the  exscinded  Synods  to 
the  Education  funds,  Theological  Seminary,  &c. 

Min.  1822,  pp.  12,  45,  50,  56,  .59. 

Min.  1823,  pp.  124,  135,  139,  145,  170, 1,  2. 


TESTIMONY  FOR  THE  RELATORS.  27 

Min.  1823,  p.  159. — "  Report  of  the  Board  of  Education,  established  by  the  General 
Assembly  ;  for  May,  1823. 

"This  year  no  reports  have  been  received  from  the  Presbyteries  of  Northumberland, 
Grand  River,  &c.     The  Presbyteries  which  have  reported,  are  the  following,  viz. 

"1.  Genesee,  which  has  one  young  man  under  its  care,  and  has  expended  last  year 
19  dollars. 

"2.  Rochester,  which  supports  three  beneficaries. 

"3.  Geneva,  which  has  two  youths  under  its  care,  and  co-operates  with  the  Western 
Education  Society. 

"4.  Bath,  which  has  0716  beneficiary,  raised  last  year  24  dollars,  34  cents,  and  ex- 
pended 25  dollars. 

"  5.   Oneida,  which  has  ?iine  beneficiarie.s.  ' 

"6.   Onondaga,  which  aids_^i;c  young  men  in  board  and  clothing,  &c." 

Miji.  1824,  p.  202. — "The  committee  appointed  to  examine  the  records  of  the  Synod 
of  Gene5ep,  rf  ported,  and  the  book  was  approved  to  page  47." 

Id.  p.  203. — The  boundary  liqe  between  the  Synod  of  Albany  and  the  Synod  of 
Geneva  altered. 

Id.  pp.  235,  242. 

Min,  1826,  p.  262. — "The  committee  to  whom  was  referred  the  overture  from  the 
Presbytery  of  Genesee,  made  a  report,  which  being  read  and  amended,  was  adopted, 
and  is  as  follows,  viz. 

"  Resolved,  That  the  Presbytery  is  the  competent  court  to  try  these  two  elders,  and 
that  it  is  their  duty  to  cite  the  offending  persons  before  them,  and  proceed  to  issue  the 
case." 

Id.  pp.  274,  301,  335—360  Min.  1826.  pp.  11,  15,  21,  59,  63,  4,  5,  6,  7,  88,  9,  90. 
Min.  1827,  pp.  120,  1,  177,  8,  9,  180,  1,  2,  3. 

Id.  p.  147. — Rev.  Henry  Axtell,  and  Mr.  Horace  Hill,  of  Auburn,  belonging  to  one 
of  the  exscinded  Synods,  elected  members  of  the  Board  of  Education. 

Min.  1828,  pp.  236,  7,  280,  1.  2,  &c.  Min.  1829,  pp.  371,  2, 381,  2,  3.  Min.  1830, 
pp.  30,  65,  6,  103,  4,  5.     Min.  1831,  p.  175. 

Id.  p.  184. — "The  committees  appointed  to  examine  the  records  of  the  Synods  of 
Albany,  *  *  *,  Geneva,  Western  Reserve,  Genesee,  *  *  *,  reported  respectively,  and 
the  records  were  approved." 

Id.  pp.  219,  220,  1,  2,  3,  261,  2,  3. — Funds  contributed  for  mipsionary  purposes,  &c., 
by  the  Presbyteries  within  the  four  Synods. 

Min.  1832,  pp.  324,  367—418.  Min.  1833,  pp.  469,  470,  1,  485. 

Id.  p.  489,  90. — "  The  committee  to  whom  was  referred  the  report  of  the  Synod  of 
the  Western  Reserve,  made  a  report,  which  being  read  and  amended,  was  adopted,  and 
is  as  follows,  viz.  After  having  maturely  considered  the  subject  referred  to  them,  they 
recommend  to  the  Assembly,  without  approving  the  views  nf  the  Synod  in  relation  to 
order  and  discipline,  as  stated  in  their  report,  that  the  report  be  accepted  and  printed  in 
the  Minutes  of  the  Assembly. 

"  The  report  of  the  Synod  is  as  follows: 

"Report  of  the  Synod  nf  the  Western  Reserve  to  the  General  Assembly  of  the  Pres- 
byterian Church  in  the  United  States  of  America,  in  relation  to  the  direction  of  this 
Synod  by  the  last  Assembly,  recorded  in  their  printed  Minutes,  p.  327. 

"At  the  stated  meeting  of  the  Synod  of  the  Western  Reserve,  held  at  Detroit,  Oct. 
8th,  1832,  the  following  resolution  was  adopted,  viz. 

"Resolved,  That  in  reference  to  the  point  named  by  the  Assembly,  as  having  been 
charged  by  common  rumor  against  this  Synod;  the  Synod  having,  as  their  custom  is, 
and  agreeably  to  the  direction  of  the  Assembly,  devoted  a  part  of  their  sessions  to 
review  and  examine  the  state  of  the  Presbyteries  and  churches  under  their  care,  do 
report  to  the  next  General  Assembly: 

"  1.  That  the  Synod  see  no  ground  for  the  charge  of  delinquency  in  relation  to  the 
permission  alleged  in  the  first  specification.  The  Synod  would  remark,  that  previously 
to  the  resolution  of  the  Assembly  on  this  subject  in  1888,  it  is  believed  that  a  difference 
of  practice  prevailed  in  our  Presbyteries,  in  the  reception  of  members  from  correspond- 
ing churches;  (as  has  been  common  in  other  Presbyteries  in  different  parts  of  the  coun- 
try,) without  any  formal  profession  of  adopting  the  Confession  of  Faith  of  the  Presbyte- 
rian church.  But  since  the  passage  of  that  resolution  by  the  Assembly,  the  Synod 
believe  that  no  such  practice  has  obtained  in  any  of  our  Presbyteries,  In  regard  to  the 
allegation  respecting  pcrjwis  licensed  and  ordained  by  our  Presbyteries,  without  receiv- 


28  PRESBYTERIAN  CHURCH  CASE. 

ing  and  adopting  the  Confession  of  Faith,  the  Synod  have  no  knowledge  orbelief  of  the 
prevalence  of  any  such  practice  in  any  of  our  Presbyteries. 

"  2.  That  in  relation  to  the  remaining  allegation,  viz.  on  the  subject  of  ruling  elders,  the 
Synod  do  not  discover  any  reason  for  the  charge  of  having  violated  the  constitution  of 
the  church,  inasmuch  as  that  constitution  does  not  make  the  eldership  essential  to  the 
e.xistence  of  a  church,  and  as  the  number  of  persons  in  many  churches  is  too  small  to 
admit  the  election  of  suitable  persons  to  fill  that  office,  and  where  this  is  not  the  case, 
the  fact  of  there  being  Congregationalists  mingled  with  Presbyterians  in  many  churches, 
is  a  sufficient  reason  for  the  non-existence  of  the  Eldership,  according  to  the  plan  of 
agreement  between  the  General  Assembly,  and  the  General  Association  of  Connecticut; 
from  the  spirit  of  which,  the  Synod  believe,  that  none  of  our  Presbyteries  have 
departed. 

"  However,  with  regard  to  the  charge  of  the  Presbyteries  allowing  the  office  of  ruling 
elder  to  go  into  disuse,  the  Synod  would  say,  that  during  the  last  year,  there  have  been 
more  ruling  elders  elected  and  ordained,  in  the  churches  connected  with  our  Presbyte- 
ries, than  during  any  three  or  four  years  previously. 

By  order  of  the  Synod  of  the  Western  Reserve, 

Attest,  WILLIAM  HANFORD,  Stated  Clerk. 

"  The  report  of  the  committee  to  examine  the  records  of  the  Synod  of  the  Western 
Reserve,  which  was  laid  on  the  table,  was  taken  up,  and  adopted,  and  is  as  fbllows,  viz. 
That  the  records  be  approved,  with  the  exception  of  the  sentiment  on  p.  154,  viz.  that 
the  eldership  is  not  essential  to  the  existence  of  the  Presbyterian  Church.  In  the  opin- 
ion of  the  committee  the  Synod  advanced  a  sentiment,  that  contravenes  the  principles 
recognised  in  our  Form  of  Government,  Chap.  IL  Sect.  4.  Chap.  III.  Sect.  5.  Chap.  V. 
Chap.  IX.  Sects.  1,  2." 

Min.  1833,  pp.  517—568.    Min.  18-34,  pp.  1—6, 13, 17. 

Id.  p.  22.  "  The  Assembly  took  up  Overture  No.  11,  viz.  A  petition  from  the  Synod 
of  the  Western  Reserve  to  erect  the  Presbyteries  of  Detroit,  Monroe,  and  St.  Joseph, 
in  the  said  Synod,  into  a  new  Synod,  to  be  called  the  Synod  of  Michigan." 

Id.  pp.  28,  30,  38,  40, 1,  82—139.  Min.  1835,  pp.  17,  18,  19,  30,  32.  Min.  1836, 
pp.  263,  276. 

Min.  18.37,  pp.  527—544,  572—576.  Monies  contributed  by  the  Presbyteries  of  the 
four  Synods. 

The  next  testimony,  Chapter  IV.  of  Form  of  Discipline. 

"  OF  ACTUAL  PROCESS. 

"  1.  When  all  other  means  of  removing  an  offisnce  have  failed,  the  judicatory  to  which 
cognizance  of  it  properly  belongs,  shall  judicially  take  it  into  consideration. 

"2.  There  are  two  modes  in  which  an  offence  may  be  brought  before  a  judicatory: 
either  by  an  individual  or  individuals,  who  appear  as  accusers,  and  undertake  to  substan- 
tiate the  charge ;  or  by  common  fame. 

"3.  In  the  former  case,  process  must  be  pursued  in  the  name  of  the  accuser  or  accu- 
eers.  In  the  latter,  there  is  no  need  of  naming  any  person  as  the  accuser.  Common 
fame  is  the  accuser.  Yet  a  general  rumour  may  be  raised  by  the  rashness,  censori- 
ousness,  or  malice  of  one  or  more  individuals.  When  this  appears  to  have  been  the 
case,  such  individuals  ought  to  be  censured,  in  proportion  to  the  degree  of  criminality 
which  appears  attached  to  their  conduct.. 

"4.  Great  caution  ought  to  be  exercised  in  receiving  accusations  from  any  person 
who  is  known  to  indulge  a  malignant  spirit  towards  the  accused  ;  wiio  is  not  of  good 
character;  who  is  himself  under  censure  or  process;  who  is  deeply  interested,  in  any 
respect,  in  the  conviction  of  the  accused ;  or  who  is  known  to  be  litigious,  rash,  or  highly 
imprudent. 

"5.  When  a  judicatory  enters  on  the  consideration  of  a  crime  or  crimes  alleged,  no 
more  shall  be  done,  at  the  first  meetings,  unless  by  consent  of  parties,  than  to  give  the 
accused  a  copy  of  each  charire,  with  the  names  of  the  witnesses  to  support  it;  and  to 
cite  ail  concerntrd  to  appear  at  the  next  meeiing  of  the  judicatory,  to  have  the  matter 
fully  heard  and  decided.  Notice  shall  be  given  to  the  parties  concerned,  at  least  ten 
days  previously  lo  the  meeting  of  the  judicatory. 

"  6.  The  citations  shall  be  issued  and  signed  by  the  moderator  or  clerk,  by  order,  and 
in  the  name  of  the  judicatory.  He  shall  also  furnish  citations  for  such  witnesses  as  the 
accused  shall  nominate,  to  appear  on  his  behalf. 


TESTIMONY  FOR  THE  RELATORS.  29 

•7.  Although  it  is  required  that  the  accused  be  informed  of  the  names  of  all  the  wit- 
ses  who  are  to  be  adduced  against  him,  at  least  ten  days  before  the  time  of  trial, 
(unless  he  consent  to  wave  the  right,  and  proceed  immediately,)  it  is  not  necessary  that 
he,  on  his  part,  give  a  sioiilar  notice  to  the  judicatory  of  all  the  witnesses  intended  to 
be  adduced  by  him  for  his  exculpation. 

"  8,  In  exhibiting  charges,  the  times,  places,  and  circumstances  should,  if  possible, 
be  ascertained  and  stated,  that  the  accused  may  have  an  opportunity  to  prove  an  alibi, 
or  to  extenuate  or  alleviate  his  offence. 

"9.  The  judicatory,  in  many  cases,  may  find  it  more  for  edification,  to  send  some 
members  to  converse,  in  a  private  manner,  with  the  accused  person;  and  if  he  confess 
guilt,  to  endeavour  to  bring  him  to  repentance,  than  to  proceed  immediately  to  citation. 
,  "  10.  VViien  an  accused  person,  or  a  witness,  refuses  to  obey  the  citation,  he  shall  be 
cited  a  second  lime:  and  if  he  still  continue  to  refuse,  he  shall  be  excluded  from  the 
communion  of  the  church,  for  his  contumacy,  until  he  repent. 

.  "11,,  Allhouoh,  on  the  first  citation,  the  person  cited  shall  declare  in  writing,  or 
otherwise,  his  fixed  determination  not  to  obey  it;  this  declaration  shall,  in  no  case, 
induce  the  judicatory  to  deviate  from  the  regular  course  prescribed  for  citations.  They 
shall  proceed  as  if  no  such  declaration  had  been  made.  The  person  cited  may  after- 
wards alter  his  mind. 

"  12.  The  time  which  must  elapse  between  the  first  citation  of  an  accused  person,  or 
a  witness,  and  the  meeting  of  the  judicatory  at  which  he  is  to  appear,  is  at  least  ten 
days.  But  the  time  allotted  for  his  appearance  in  the  subsequent  citation,  is  left  to  the 
discretion  of  the  judicatory;  provided,  always,  however,  that  it  be  not  less  than  is  quite 
sufficient  for  a  seasonable  and  convenient  compliance  with  the  citation. 

"13.  The  second  citation  ought  always  to  be  accompanied  with  a  notice,  that  if  the 
person  cited  do  not  appear  at  the  time  appointed,  the  judicatory,  besides  censuring  liim 
for  his  contumacy,  will,  after  assigning  some  person  to  manage  his  defence,  proceed  to 
take  the  testimony  in  his  case,  as  if  he  were  present. 

"14.  Judicatories  befere  proceeding  to  trial,  ought  to  ascertain  that  their  citations 
have  been  duly  served  on  the  persons  for  whom  they  were  intended,  and  especially 
before  they  proceed  to  ultimate  measures  for  contumacy. 

"  15.  The  trial  shall  be  fair  and  impartial.  The  witnesses  shall  be  examined  in  the  pre- 
sence of  the  accused;  or,  at  least,  after  he  shall  have  received  due  citation  to  attend; 
and  he  shall  be  permitted  to  ask  any  questions  tending  to  his  own  exculpation. 

"  16.  The  judgment  shall  be  regularly  entered  on  the  records  of  the  judicatory:  and 
the  parties  shall  be  allowed  copies  of  the  whole  proceedings,  at  their  own  expense,  if 
they  demand  them.  And  in  case  of  references  or  appeals,  the  judicatory  referring,  or 
appealed  from,  shall  send  authentic  copies  of  the  whole  process  to  the  higher  judicatory. 

"17.  The  person  found  guilty  shall  be  admonished  or  rebuked,  or  excluded  from 
church  privileges,  as  the  case  shall  appear  to  deserve,  until  he  give  satisfactory  evidence 
of  repentance. 

"  18.  As  cases  may  arise  in  which  many  days,  or  even  weeks,  may  intervene  before 
it  is  practicable  to  commence  process  against  an  accused  church  member,  the  session 
may,  in  such  cases,  and  ought,  if  they  think  the  edification  of  the  church  requires  it,  to 
prevent  the  accused  person  from  approaching  the  Lord's  table  until  the  charge  against 
him  can  be  examined. 

"  19.  The  sentence  shall  be  published  only  in  the  church  or  churches  which  have 
been  offended.  Or,  if  the  oflTence  be  of  small  importance,  and  such  as  it  shall  appear 
most  for  edification  not  to  publish,  the  sentence  may  pass  only  in  the  judicatory. 

"20.  Such  gross  offenders  as  will  not  be  reclaimed  by  the  private  or  public  admoni- 
tions of  the  church,  are  to  be  cut  off  from  its  communion,  agreeably  to  our  Lord's  direc- 
tion, Mat.  xviii.  17.  And  the  apostolical  injunction  respecting  the  incestuous  person, 
1  Cor.  V.  1—5. 

"21.  No  professional  counsel  shall  be  permitted  to  appear  and  plead  in  cases  of  pro- 
cess in  any  of  our  ecclesiastical  courts.  But  if  any  accused  person  feel  unable  to  repre- 
sent and  plead  his  own  cause  to  advantage,  he  may  request  any  Minister  or  Elder, 
belonging  to  the  judicatory  before  which  he  appears,  to  prepare  and  exhibit  his  cause  as 
he  may  judge  proper.  But  the  Minister  or  Elder  so  engaged,  shall  not  be  allowed,  after 
pleading  the  cause  of  the  accused,  to  sit  in  judgment  as  a  member  of  the  judicatory. 

"22.  Questions  of  order,  which  arise  in  the  course  of  process  shall  be  decided  by  the 
Moderator.  If  an  appeal,  is  made  from  the  chair,  the  question  on  the  appeal  shall  be 
taken  without  debate.      * 


30  PRESBYTERIAN  CHURCH  CASE. 

"23.  In  recording  the  proceedings,  in  cases  of  judicial  process,  the  reasons  for  all 
decisions,  except  on  questions  of  order,  shall  be  recorded  at  length ;  that  the  record  may 
exhibit  every  thing  which  had  an  influence  on  the  judgment  of  the  court.  And  nothing 
but  what  is  contained  in  the  record,  may  be  taken  into  consideration  in  reviewing  the 
proceedings  in  a  superior  court." 

Chapter  V. 

"  OF  PROCESS  AGAINST  A  BISHOP  OR  MINISTER. 

"  1.  As  the  honour  and  success  of  the  Gospel  depend,  in  a  great  measure,  on  the 
character  of  its  ministers,  each  Presbytery  ought,  with  the  greatest  care  and  impartiality^ 
to  watch  over  the  personal  and  professional  conduct  of  all  its  members.  But  as,  on  the 
one  hand,  no  minister  ought,  on  account  of,  his  office,  to  be  screened  from  the  hand  of 
justice,  nor  his  offences  to  be  slightly  censured;  so  neither  ought  scandalous  charges  to 
be  received  ajrainst  him,  by  any  judicatory,  on  sliurht  grounds. 

"  2.  Process  agamsc  a  Gospel  minister  shall  always  be  entered  before  the  Presbytery 
of  which  he  is  a  member.  And  the  same  candour,  caution,  and  general  method,  substi- 
tuting only  the  Presbytery  for  the  session,  are  to  be  observed  in  investigating  charges 
against  him,  as  are  prescribed  in  the  case  of  private  members.  . 

"3.  If  it  be  found  that  the  facts  with  which  a  minister  stands  charged,  happened 
without  the  bound.s  of  his  own  Presbytery,  that  Presbytery  shall  send  notice  to  the  Pres- 
bytery within  whose  bounds  they  did  happen:  and  desire  them  either  (if  witliin  conve- 
nient distance)  to  cite  the  witnesses  to  appear  at  the  place  of  trial ;  or,  (if  the  distance 
be  so  great  as  to  render  that  inconvenient,)  to  take  the  examination  themselves,  and 
transmit  an  authentic  record  of  their  testimony:  always  giving  due  notice  to  the  accused 
person  of  the  time  and  place  of  such  examination. 

"4.  Nevertheless,  in  case  of  a  minister  being  supposed  to  be  guilty  of  a  crime,  or 
crimes,  at  such  a  distance  from  his  usual  place  of  residence,  as  that  the  offence  is  not 
likely  to  become  otherwise  known  to  the  Presbytery  to  which  he  belongs;  it  shall,  in 
such  case,  be  the  duty  of  the  Presbytery  within  whose  bounds  the  facts  shall  have  hap- 
pened, after  satisfying  themselves  that  there  is  probable  ground  of  accusation,  to  send 
notice  to  the  Presbytery  of  which  he  is  a  member,  who  are  to  proceed  against  him,  and 
either  send  and  take  the  testimony  themselves,  by  a  commission  of  their  own  body,  or 
request  the  other  Presbytery  to  take  it  for  them,  and  transmit  the  same,  properly 
authenticated. 

"5.  Process  against  a  Gospel  minister  shall  not  be  commenced,  unless  some  person' 
or  persons,  undertake  to  make  nut  the  charge:  or  unless  common  fame  so  loudly  pro- 
claims the  scandal,' that  the  Presbytery  find  it  necessary,  for  the  honour  of  religion,  to 
investigate  the  charge. 

"  6.  As  the  success  of  the  Gospel  greatly  depends  upon  the  exemplary  character  of 
its  ministers,  thoir  soundness  in  the  faith,  and  holy  conversation;  and  as  it  is  the  duty 
of  all  Christians  to  be  very  cautious  in  talnng  up  an  ill  report  of  any  man,  but  especial- 
ly of  a  minister  of  the  Gospel ;  therefore,  if  any  man  knows  a  minister  to  be  guilty  of  a 
private,  censurable  fault,  ho  should  warn  him  in  private.  But  if  the  guilty  person  per- 
sist in  his  fault,  or  it  becomes  public,  he  who  knows  it,  should  apply  to  some  other 
bishop  of  the  Presbytery  for  his  advice  in  the  case. 

"  7.  The  prosecutor  nf  a.  minister  shall  be  previously  warned,  that  if  he  fail  to  prove 
the  charges,  he  must  himself  be  censured  as  a  slanderer  of  the  Gospel  ministry,  in  pro- 
portion to  the  malignity  or  rashness  that  shall  appear  in  the  prosecution. 

"8.  When  complaint  is  laid  before  the  Presbytery,  it  must  be  reduced  to  writing: 
and  nothing  further  is  to  be  done  at  the  first  meeting,  (unless  by  consent  of  parties,) 
than  giving  the  minister  a  fuU  ropy  of  the  charfjes,  with  the  names  of  the  witnesses  an- 
nexed :  and  citing  all  parties,  and  their  witnesses,  to  appear  and  be  heard  at  the  next 
meeting  :  which  meeting  shall  not  be  sooner  than  ten  days  after  such  citation. 

"  9.  When  a  member  of  a  church  judicatory  is  under  process,  it  shall  be  discretionary 
with  the  judicatory,  whether  his.  privileges  of  deliberating  and  voting,  as  a  member  in 
other  matters,  shall  be  suspended  until  the  process  is  finally  issued,  or  not. 

"  10.  At  the  next  meeting  of  the  Presbytery,  the  charges  shall  be  read  to  him,  and  ho 
shall  be  called  upon  to  say  whether  he  is  guilty  or  not.  If  he  confess,  and  the  matter  be  base 
and  flagitious;  such  as  druiikeimess,  uncleanness,  or  crimes  of  a  higher  nature,  however 
penitent  he  may  appear,  to  the  satisfaction  of  all,  the  Presbytery  must,  without  delay, 
suspend  him  from  the  exercise  of  his  office,  or  depose  him  from  the  ministry  ;  and,  if 


TESTIMONY  FOR  THE  RELATORS.  3j 

the  way  be  clear  for  the  purpose,  appoint  him  a  due  lime  to  confess  publicly  before  the 
congregation  offended,  and  to  profess  his  penitence. 

"  11.  If  a  minister  accused  of  atrocious  crimes,  being  twice  duly  cited,  shall  refuse  to 
attend  the  Presbytery,  he  shall  be  immediately  suspended.  And  if,  after  another  cita- 
tion, he  still  refuse  to  attend,  he  shall  be  deposed  as  contumacious. 

"  12.  If  the  minister,  when  he  appears,  will  not  confess;  but  denies  the  facts  alleged 
against  him,  if,  on  hearing  the  witnesses,  the  charges  appear  important,  and  well  sup- 
ported, the  Presbytery  must,  nevertheless,  censure  him  ;  and  admonish,  suspend,  or  de- 
pose him,  according  to  the  nature  of  the  offence. 

"13.  Heresy  and  schism  may  be  of  such  a  nature  as  to  infer  deposition;  but  errors 
ought  to  be  carefully  considered ;  whether  they  strike  at  the  vitals  of  religion,  and  are 
industriously  spread;  or,  whether  they  arise  trom  the  weakness  of  the  human  under- 
standing, and  are  not  likely  to  do  much  injury. 

"  14.  A  minister  under  process  for  heresy  or  schism,  should  be  treated  with  Christian 
and  brotjierly  tenderness.  Frequent  conferences  ought  to  be  held  with  him,  and  proper 
admonitions  administered.  For  some  more  dangerous  errors,  however,  suspension  may 
become  necessary. 

"  15.  If  the  Presbytery  find,  on  trial,  that  the  matter  complained  of,  amounts  to  no 
more  than  such  acts  of  infirmity  as  may  be  amended,  and  the  people  satisfied  ;  so  that 
little  or  nothing  remains  to  hinder  his  usefulness,  they  shall  take  all  prudent  measures 
to  remove  the  offence. 

"16.  A  minister  deposed  for  scandalous  conduct,  shall  not  be  restored,  even  on  the 
deepest  sorrow  for  his  sin,  until  after  some  time  of  eminent  and  exemplary,  humble  and 
edifying  conversation,  to  heal  the  wound  made  by  his  scandal.  And  he  ought^n  no  case 
to  be  restored,  until  it  shall  appear,  that  the  sentiments  of  the  religious  public  are 
strongly  in  his  favour,  and  demand  his  restoration. 

"  17.  As  soon  as  a  minister  is  deposed,  his  congregation  shall  be  declared  vacant." 

Next,  Form  of  Government,  Chapter  XII. 

"IV.  The  General  Assembly  shall  receive  and  issue  all  appeals  and  references, 
which  may  be  regularly  brought  before  them,  from  the  inferior  judicatories.  They 
shall  review  the  records  of  every  Synod,  and  approve  or  censure  them ;  they  shall  give 
their  advice  and  instruction,  in  all  cases  submitted  to  them,  in  conformity  with  the  con- 
stitution of  the  Church;  and  they  shall  constitute  the  bond  of  union,  peace  correspon- 
dence, and  mutual  confidence,  among  all  our  churches. 

"  V.  To  the  General  Assembly  also  belongs  the  power  of  deciding  in  all  controversies 
respecting  doctrine  and  discipline  ;  of  reproving,  warning,  or  bearing  testimony  against 
error  in  doctrine,  or  immorality  in  practice,  in  any  Church,  Presbytery,  or  Synod  ;  of 
erecting  new  Synods,  when  it  may  be  judged  necessary  ;  of  superintending  the  concerns 
of  the  whole  Church  ;  of  corresponding  with  foreign  churches,  on  such  terms  as  may  be 
agreed  upon  by  the  Assembly  and  the  corresponding  body;  of  suppressing  schismatical 
contentions  and  disputations  ;  and,  in  general  of  recommending  and  attempting  reforma- 
tion of  manners,  and  the  promotion  of  charity,  tiuth,  and  holiness,  through  all  the 
churches  under. their  care. 

"  VI.  Before  any  overtures  or  regulations  proposed  by  the  Assembly  to  be  established 
as  constitutional  rules,  shall  be  obligatory  on  the  churches,  it  shall  be  necessary  to  trans- 
mit them  to  all  the  Presbyteries,  and  to  receive  the  returns  of  at  least  a  majority  of 
them,  in  writing,  approving  thereof" 

Min.  1822,  p.  22.  "  The  committee  to  which  was  referred  a  paper  purporting  to  be 
a  remonstrance  from  John  M.  Rankin  and  others,  who  allege  that  they  are  members  of 
the  Presbyterian  Church  in  the  United  States,  having  had  the  same  under  serious  con- 
sideration, submitted  the  following  report,  which  was  adopted,  viz  : 

"  The  General  Assembly  can  never  hesitate,  on  any  proper  occasion,  to  recommend 
to  those,  who,  at  both  their  licensure  and  ordination,  professed  "  sincerely  to  receive  and 
adopt  the  Confession  of  Faith  of  this  Church,  as  containing  the  system  of  doctrine 
taught  in  the  Holy  Scriptures,"  and  to  all  other  members  of  our  Church,  steadfastly  to 
adhere  to  that  "  form  of  sound  words." 

"  But  while  the  General  Assembly  is  invested  with  the  power  of  deciding  in  all  con- 
troversies, respecting  doctrine  and  principle ;  of  reproving,  warning,  or  bearing  testi- 
mony, against  error  in  doctrine  in  any  Church,  Presbytery,  or  Synod  ;  or  of  suppressing' 
schismatical  contentions  an*  disputations,  all  such  matters  ought  to  he  brought  before 


32  PRESBYTERIAN  CPIURCH  CASE. 

the  Assembly  in  a  regular  and  constitutional  way.  And  it  does  not  appear  that  the 
constitution  ever  designed,  that  the  General  Assembly  should  take  up  abstract  cases, 
and  decide  on  them,  especially  wheli  the  object  appears  to  be,  to  brine:  those  decisions  to 
bear  on  particular  individuals,  not  judicially  before  the  Assembly.  Neither  does  it  ap- 
pear, that  the  Constitution  of  the  Church,  intended  that  any  person  or  persons,  should 
have  the  priviiecfe  of  presentinnr  for  decision,  remonstrances  respecting  points  of  doe- 
trine,  on  the  conduct  of  individuals,  not  brougiit  up  from  the  superior  judicatories,  by 
appeal,  reference,  or  complaint;  and  this  especially,  when  such  remonstrances  contain 
no  evidence  whatsoever,  of  the  facts  alleged,  but  mere  statements,  of  the  truth  or  just- 
ness of  which  the  Assembly  have  no  means  of  judging,  inasmuch  as  a  contrary  course,. 
would  allow  of  counter  and  contradictory  remonstrances,  without  end. 

"  Wherefore,  on  motion  Resolved,  that  the  committed  be  discharged  from  the  further 
consideration  of  this  remonstrance  ;  and  the, committee  were  accordingly  discharged." 

Court  adjourned. 

WEDNESDAY  MORNING,  March  6th— 10  o'clock. 
Mr.  Randall  offered  in  evidence  portions  of  a  statistical  table,  (Mln. 
1837,  p.  521,)  to  prove  that  in  Presbyteries  still  in  connexion  with  the 
General  Assembly,  there  were  numerous  ministers  who  were  pastors  of 
Congregational  Churches.  He  showed  that  in  the  Presbyteries  of  Lon- 
donderry and  Newburyport,  belonging  to  the  Synod  of  Albany,  out  of  for- 
ty-one ministers  reported  as  composing  those  Presbyteries,  there  were  six- 
teen pastors  of  Congregational,  and  only  fourteen  of  Presbyterian  Churches, 
{pp.  522 — 3.)  He  then  offered  other  parts  of  the  table  to  show  that  there 
were  no  such  cases  reported  in  any  of  the  Presbyteries  of  the  exscinded 
Synods.  Next  he  referred  to  the  table,  beginning  with  the  Presbytery  of 
St.  Lawrence,  {p.  527,)  to  show  the  amount  of  contributions  to  the  Church 
funds,  collected  within  those  Synods,  in  the  year  ending  with  the  date  of 
the  reports  of  1837.     Some  of  the  extracts  were  as  follows  : 

"Presbytery  of  St.  Lawrence, $9.53  33 

VVatertown, -        -    976  32 

Oswego, 662  07 

Otsego, 1525  01 

Geneva, -      7729  95 

Cayuga,         ....--..  3251  00 

Rochester, 15,750  50." 

Mr.  Randall  next  offered  to  read  from  the  same  minutes,  (1837,  jtr. 
520,)  to  show  what  ecclesiastical  bodies  were  recognised  as  in  connexion 
with  the  Church,  at  the  opening  of  the  Assembly  of  1837. 

Mr.  Hubbell.  We  object  to  the  evidence  proposed,  may  it  please 
your  Honor.  The  admission  of  tliis  testimony  would  involve  us  in  other 
questions  than  those  raised  by  the  pleadings.  The  proceedings  of  the 
Assembly  of  1837  have  no  bearing  upon  this  case :  why  does  the  other 
party  wish  to  introduce  them  here?  What  is  their  purpose ?  Is  it  to 
prove  that  that  Assembly  dismembered  and  destroyed  itself?  If  any 
thing  less  than  this,  what  effect  can  the  proceedings  of  1837  have  upon 
those  of  1838?  The  pleadings,  however,  preclude  the  admission  of  evi- 
dence for  such  a  purpose.  The  Assembly  of  1838  derjved  its  existence 
from  the  adjournment  in  1837.  The  very  appointment  of  these  trustees, 
the  relators  in  this  suit,  is  an  acknowledgment  of  the  fact,  that  the  As- 
sembly of  1837  did  not  perform  any  act  of  dismemberment.  It  was 
said,  in  the  opening  of  the  opposite  party,  that  the  officers  of  the  Assein- 
bly  of  1838  had  rejected  from  the  roll  of  that  body  certain  individuals 
claiming  seats,  and  that  this  was  the  true  ground  of  the  controversy. 


TESTIMONY  FOR  THE  RELATORS.  33 

That  a  certain  gentleman  rose,  and  proposed  the  deposition  of  those  offi- 
cers, for  their  misconduct;  and  that,  by  an  almost  unanimous  vole,  they 
were  deposed.  Their  object,  then,  is  to  prove,  that  the  officers  of  the 
Assembly  of  1838  Committed  some  error;  that  they  defeated  the  consti- 
tutional organization  of  the  Assembly,  by  their  refusal  to  admit  the 
claimants  referred  to.  If  so,  if  such  a  rejection  can  be  proved,  and  it 
can  also  be  shown  that  this  rejection  defeated  the  organization  of  the  As- 
sembly, the  plaintiffs  have  made  out  that  part  of  their  case.  But  why 
should  they  go  into  our  case?  We  deny  that  the  Assembly  ever  made 
.any  such  rejection  ;  that  they  ever  committed  themselves  on  the  subject. 
But  even  if  they  did,  why  should  our  opponents  go  into  the  proceedings 
of  the  Assembly  of  1837  to  find  a  reason,  either  good  or  bad,  for  such 
rejection  ?  If  there  are  any  such  reasons,  it  is  our  business  to  exhibit 
them.  They  have  no  right  to  meddle  with  them — to  come  into  our  camp. 
Let  us  justify  ourselves. 

The  Assembly  of  1S38,  as  regards  the  qualification  of  its  members, 
was  entirely  independent  of  that  of  1837.  It  may  have  been  composed 
of  members  entirely  different,  though  coming  from  the  same  constituent 
bodies.  The  two  Assemblies  had  not  even  the  same  Moderator;  for  the  old 
Moderator  continues  in  office  merely  to  constitute  the  new  body.  Here 
are  certain  individuals,  then,  who  present  themselves  to  the  Permanent  and 
Stated  Clerks  of  the  Assembly  of  1838,  whose  business  it  is  to  judge  of  the 
validity  of  commissions,  and  they  are  rejected.  An  attempt  is  made  to 
introduce  the  matter  to  the  consideration  of  the  house.  The  Moderator 
declares  the  motion  for  that  purpose  out  of  order,  and  an  appeal  being 
taken  from  his  decision,  he  declares  the  appeal  also  out  of  order.  Now 
they  may  contend,  that  by  this  act,  the  house  either  was  dismembered, 
or,  on  appeal  to  it,  unanimously  removed  its  officers  for  their  misconduct. 
Well,  if  there  was  a  unanimous  removal,  why  should  the  plaintiffs  go 
back  to  the  proceedings  of  1837:  why  should  they  anticipate  our  de- 
fence? Perhaps  we  may  say  that  our  opponents  have  violated  some  rule 
of  the  Assembly.  If  this  be  our  defence  they  certainly  have  no  right  to 
anticipate  us  in  the  development  of  it.  Suppose  it  true,  that  the  Assem- 
bly of  1837  did  \;ommit  injustice:  what  effect  can  this  have  upon  the 
proceedings  of  1838,  when,  as  they  contend,  the  error  has  been  cleared 
away?  "  Ah!  but  you  won't  admit  this,"  say  they-;  "  therefore  we  will 
go  into  evidence  to  show  the  injustice  of  the  acts  of  1837."  Well,  sup- 
pose they  abandon  this  ground,  and  contend  that  no  regular  process  was 
commenced  under  the  Assembly  of  1838;  that,  from  the  rejection  of 
certain  commissioners  by  the  clerks,  every  thing  done  was  void  and  of  no 
effect:  still,  is  it  for  them  to  say,  that  the  Assembly  of  1837  committed 
an, error?  If  we  attempt  to  show  a  justification  for  our  Moderator  and 
clerks,  must  we  do  it  in  the  way  which  they  point  out?  We,  indeed, 
intend  to  prove  our  Moderator  and  clerks  in  the  right ;  and  that  they, 
taking  offence  at  the  primary  and  inferior  tribunal,  never  presented  their 
case  regularly  for  rejection. 

The  plaintiffs  have  taken  the  ground,  that  an  error  of  the  clerks  made 
them  the  true  General  Assembly,  and  dismembered  and  destroyed  our 
body.  But  they  want  to  go  farther  than  this,  and  show  a  bad  motive, 
which,  they  say,  must  have  actuated  our  party. 

5 


34  PRESBYTERIAN  CHURCH  CASE. 

Judge  Rogers.  This  evidence  seems  to  me  to  be  exactly  of  the  same 
kind  with  that  already  admitted. 

Mr.  Huhhe.ll.  For  the  purpose  for  which  the  other  testimony  was  re- 
ceived, we  have  no  objection  that  this  should  be  admitted.  We  conceived 
it  to  be  the  right  and  duty  of  our  opponents  to  build  up  an  Assembly. 
But  how  is  this  to  be  done?  By  showing  that  these  bodies  have  been 
admiLted  as  parts  of  the  Presbyterian  Church?  This  is  conceded. 
Whether  admitted  constitutionally,  or  not,  is  another  thing.  But  they 
cannot  be  allowed  to  show  that  the  proceedings  of  1837  are  a  poor  reason 
for  those  of  1838  ;  that  our  defence  is  a  poor  defence.  Let  us  be  masters 
of  our  own  defence. 

Mr.  -Ingersoll.  I  should  like  to  know  for  what  purpose  Mr.  Randall 
offers  the  evidence.  It  may  be  that  he  has  two  objects.  If  offered  to 
prove  the  admission  of  these  Synods,  it  is  proper,  or,  at  least,  only  irrele- 
vant.    If  to  prove  their  rejection,  it  is  inadmissible. 

Judge  Rogers.     What  is  the  object  of  the  testimony,  Mr.  Randall  ? 

Mr.  Randall.  May  it  please  your  Honor,  our  object  is  to  show  the 
state  of  the  General  Assembly  in  1837;  that  these  Synods  were  then  in 
good  standing,  and  incorporated  as  a  part  of  the  Presbyterian  Church, 
under  the  Constitution  of  1831.  Then  to  follow  this  up,  by  showing  an 
act  of  dismemberment,  begun  by  the  clerks  of  the  Assembly,  and  carried 
out  by  the  Moderator,  which  defeated  the  organization,  and  made  it  void 
and  nugatory,  whereby- we  became  the  true  General  Assembly  But  we 
cannot  prove  more  than  one  link  at  a  time.  The  links  are  independent 
of  each  other,  except  as  to  order. 

Judge  Rogers.     Mr.  Hubbell,  you  may  go  on. 

Mr.  Hubbell.  May  it  please  your  Honor,  we  do  not  pretend  that  the 
act  of  the  clerks  was  a  mistake.  Our  opponents  cannot,  then,  bring  evi- 
dence to  prove  that  it  was  not  a  mistake — that  it  was  the  result  of  de- 
liberate design.  If  they  prove  that  certain  commissions  were  presented 
to  the  clerks,  and  by  them  refused ;  that  then  a  resolution  in  regard  to 
them  was  offered,  and,  this  resolution  being  declared  out  of  order,  an  ap- 
peal was  taken  from  the  Moderator's  decision,  but  that  the  Moderator 
refused  to  put  the  appeal — if  all  this  be  shown,  they  have  laid  the  basis 
of  their  superstructure.  They  must  not  anticipate  our  defence  to  the  al- 
legation. If  the  acts  of  1837  dismembered  the  General  Assembly,  then 
our  trustees,  appointed  before  that  time,  are  entitled  to  their  places.  This 
supposition  would  defeat  the  issue  chosen  by  the  other  party.  They  ad- 
mit, therefore,  that  those  elected  trustees  in  1837,  even  after  the  acts 
complained  of,  were  lawfully  elected.  If,  on  the  other  hand,  no  dismem- 
berment is  alleged,  what  can  be  the  effect  of  the  testimony  offered? 
The  Assembly  of  1838  was  an  entirely  independent  body,  having  full 
power  to  judge  of  the  qualifications  of  its  own  members.  The  rejection 
complained  of  was  not  influenced  by  the  proceedings  of  1837,  except  as 
they  furnish  us  a  reason — an  excuse,  if  we  choose  to  avail  ourselves  of 
it,  for  the  purpose  of  defence.  The  other  party  themselves  contend,  that 
the  proceedings  of  the  Assembly  of  1338  should  not  have  been  influ- 
enced by  those  of  1837.  They  say,  that  the  latter  were  void,  except  as 
merely  advisory  or  recommendatory,  and  that  therefore  the  rejection  of 
commissioners  in  1838  was  bad.     We  will,  ourselves,  show  the  reason 


TESTIMONY  FOR  THE  RELATORS.  35 

of  this  rejection,  and  will  not  allow  our  case  to  be  mangled  and  dis- 
torted. 

Judge  Rogers.  I  do  not  like  to  decide,  at  this  stage  of  the  proceed- 
ings, whether  the  testimony  offered  involves  the  merits  of  the  case  or  not. 
It  may  be  admitted  now,  and  the  point  be  decided  hereafter. 

Mr.  Ingersoll.  I  should  like  to  say  half  a  dozen  words  in  explana- 
tion, even  if  the  testimony  be  admitted.  If  it  go  to  prove  the  same 
points  as  that  offered  yesterday  it  is  merely  irrelevant.  If  the  other 
point,  which  I  have  mentioned,  it  will  produce  serious  evil,  by  raising  a 
false,  a  prejudicial,  and  a  dangerous  issue.  There  were  two  courses  for 
the  New-school  party  to  take.  They  might  have  issued  a  mandamus, 
and  thus  have  established  their  rights,  if  unjustly  deprived  of  them. 
TJiey  did  not  choose,  however,  to  try  that  remedy,  but  met  in  Ranstead 
Court,  determined  on  a  bolder  measure.  Here  they  did  not  proceed  regu- 
larly, but,  having  reached  a  particular  point,  seceded.  The  question  now 
before  us  is,  did  they  secede  properly?  Under  this  quo  warranto^  the 
remedy  selected,  they  must  show  their  title.  Again,  they  say  that  we 
did  things  irregularly  in  the  Assembly  of  1837,  and  therefore  ask  the  as- 
sistance of  the  Court  to  oust  us.  But  the  Assembly  of  1837  was  entirely 
dissolved.  Look  at  the  provision  on  this  subject,  in  the  Form  of  Gov- 
ernment, Chap.  XII.  Sect.  8.  "Each  session  of  the  Assembly  shall  be 
opened  and  closed  with  prayer.  And  the  whole  business  of  the  Assem- 
bly being  finished,  and  the  vote  taken  for  dissolving  the  present  Assem- 
bly, the  Moderator  shall  say  from  the  chair — 'By  virtue  of  the  authority 
delegated  to  me,  by  the  Church,  let  this  General  Assembly  be  dissolved, 
and  I  do  hereby  dissolve  it,  and  require  another  General  Assembly, 
chosen  in  the  same  manner,  to  meet  at  ,  on  the  day  of 

A.  D.  ,' — after  which  he  shall  pray  and  return  thanks,  and  pro- 

nounce on  those  present  the  apostolic  benediction." 

The  Assembly  then  of  1837  was  dissolved  and  extinguished.  It  was 
not  an  adjournment,  nor  yet  a  curia  advisare  vult,  as  in  the  practice  of 
the  Supreme  Court.  Therefore,  as  to  that  Assembly,  there  was  an  end 
of  every  thing.  Now,  if  any  members  had  been  unjustly  excluded  from 
the  Assembly  of  1837,  they  should  have  applied  for  re-admission  in  1838. 
But,  instead  of  this,  they  chose  to  secede ;  and  here,  they  must  prove, 
not  that  the  proceedings  of  1837  were  void,  but  that  their  secession  was 
proper.  We  say,  that  they  were  not  excluded  from  the  General  Assem- 
bly of  1838:  they  never  sought  admission.  That  Assembly  never  had 
an  opportunity  to  decide  on  their  case. 

Judge  Rogers.  It  is  one  link  in  the  testimony.  AVe  must  have  the 
proceedings  of  1837,  to  explain  those  of  1838. 

Mr.  Randall,  then  read  the  testimony  offered. 

Min.  \SSl,p.  520. 

"  SYNODS  AND  PRESBYTERIES, 

•'The  followinof  summary  account  of  Synods  and  Prebyteries  together  with  the  sta- 
tistical reports  of  Presbyteries,  in  detail,  present  the  Presbyterian  Church  as  it  was  at 
the  commencement  of  the  sessions  of  the  General  Assembly.  During  these  sessions, 
four  of  these  Synods,  with  all  their  respective  Presbyteries,  were  declared  to  be  no 
longer  a  part  of  the  Presbyterian  Church  in  the  United  States  of  America,  viz.,  the 
Synod  of  the  Western  Reserve,  [see  Minutes,  page  440,]  and  the  Synods  of  Ulica,  Ge- 
neva and  Genesee,  [see  Minutes,  page  444,]  and  the  Third  Presbytery  of  Philadelphia 
was  dissolved,  [see  Minuteirpage  472.]    The  Assembly  directed  the  Slated  Clerk,  hav- 


36  PRESBYTERIAN  CHURCH  CASE. 

ing  inserted  a  note  to  this  effect,  to  publish  the  statistics  of  these  judicatories  for  the 
past  year,  [see  Minutes,  page  494.] 

"  The  General  Assembly  of  18:37.  at  the  commencennent  of  their  sessions,  had  under 
their  care  twenty-three  iSynods,  connprising  one  hundred  and  thirty-Jive  Presbyteries, 

yJ2.  **1<*^.  *****  *** 

"2.  The  Synod  of  UTICA,  containing  the  five  Presbyteries  of  St.  Lawrence,  VVa- 
tertown,  Oswego,  Oneida,  and  Otsego. 

"  3.  Tlie  Synod  of  GENEVA,  containing  the  nine  Presbyteries  of  Geneva,  Chenango, 
Onondaga,  Cayuga,  Tioira,  Cortland,  Bath,  Delaware  and  Chemung.  • 

"4.  The  Synod  of  GENESEE,  containing  the  .siar  Presbyteries  of  Genesee,  Onta- 
rio, Rochester,  Niagara,  Buffalo  and  Angelica. 

****»****'***** 
"  9.  The  Synod  of  the  Western  Reserve,  containing  the  eight  Presbyteries,  of  Grand 
River,  Portage,  Huron,  Trumbull,  Cleveland,  Maumee,  Loram  and  Medina." 

As  explanatory  of  the  table  from  which  the  above  was  extracted,  Mr. 
JRa}idail read  the  following: 

Min.  1837,  p.  494.  "In  answer  to  a  request  of  the  Stated  Clerk,  for  direction  in 
making  out  the  General  Statistical  Table,  for  the  current  yea-r,  the  Assembly  ordered 
that  he  should  insert  in  that  table,  the  statistics  in  his  hands  for  the  past  year,  of  those 
judicatories  that  have  been  declared  by  the  General  Assembly  to  be  no  longer  parts  of 
the  Presbyterian  Church,  and  to  insert  a  marginal  note  to  this  effect;  and  that  here- 
after those  statistics  shall  not  appear  in  the  general  table  published  by  the  General  As- 
sembly." 

The  next  evidence  offered  was  a  list  of  the  Presbyteries  within  the  ex- 
scinded Synods,  with  the  dates  of  their  formation,  from  which  it  appear- 
ed, that  there  were  in  those  Synods  twenty  eight  Presbyteries,  with^i;e 
hundred  and  nine  ministers,  Jive  hundred  and  ninety-nine  churches, 
zxvd  fifty  thousand,  four  hundred  and  eighty-nine  communicants. 

Jfr.  I?an6/a// remarked — There  is  another  case  which  may  properly 
be  mentioned  here,  somewhat  isolated  in  character,  but  nevertheless  form- 
ing a  link  in  the  chain  of  testimony,  heretofore  kept  out  of  view.  I 
allude  to  the  case  of  the  Third  Presbytery  of  Philadelphia,  containing 
thirty-three  ministers,  thirty-two  churches,  and  four  thousand  eight 
hundred  and  fifty  communicants,  which,  at  the  same  meeting  of  the  As- 
sembly— that  of  1837 — was  dissolved,  but  without  the  usual  provision  at- 
taching the  ministers  and  churches,  of  which  it  was  composed,  to  other 
Presbyteries,  they  being  left  to  apply  for  admission  to  other  bodies,  and 
run  the  risk  of  being  told,  on  stich  appplication,  "  We  don't  knovv  you." 
And  this  excision,  as  in  the  other  cases,  was  wholly  without  trial,  proof, 
or  even  accusation. 

The  Rev.  Mr.  Eliakim  Phelps  being  called  to  prove  the  correctness  of 
this  statistical  list,  the  proof  was  waved  by  the  counsel  for  the  defendants, 
who  agreed  to  admit  the  list  without  proof,  subject,  however,  to  correction, 
if  found  erroneous  i:i  any  particular. 

Mr.  Randall.  We  will  now  recur  to  the  proceedings  of  the  Assem- 
bly of  1837,  beginning  with  its  organization. 

Min.  1837,  f.  411.  "The  General  Asembly  of  the  Presbyterian  Church  in  the  United 
States  of  A'^nerica,  met  agreeably  to  appointment,  in  the  Central  Presbyterian  Church, 
in  the  city  of  Philadelphia,  on  Thursday,  the  18th  day  of  May,  1837,  at  11  o'clock,  A. 
M. ;  and  was  opened  with  a  sermon  by  the  Rev.  John  Wilherspoon,  D.  D.,  the  Mode- 
rator of  the  last  Assembly,  &-c. 

"  The  Standing  Committee  of  Commissions  reported  that  the  following  persons  pre- 
sent have  been  duly  appointed  Commissioners  to  this  General  Assembly,  viz." 

Then  follows  a  list  of  members,  from  which  it  appears,  that  every  one 


TESTIMONY  FOR  THE  RELATORS.  37  * 

of  the  Presbyteries  in  the  four  Synods  of  Utica,  Geneva,  Genesee  and 
Western  Reserve,  were  represented,  their  ddegates  amounting,  in  all,  to 
the  number  oi  fifty-one,  of  whom  thirty-five  were  ministers,  and  sixteen 
elders.  These  voted  in  the  choice  of  Moderator,  and,  up  to  a  certain  pe- 
riod, took  a  part  in  all  the  proceedings  of  the  Assembly. 

On  page  419,  is  the  minute  of  the  first  of  that  series  of  acts  which  re- 
sulted in  the  excision  of  these  Synods. 

"  Monday  Morning,  May  22d. — The  Aissembly  met,  &c. 

"The  committee  to  whom  Overture  No.  I,  viz.  'The  Memorial  and  Testimony  of 
the  Convention,'  had  been  referred,  made  a  report,  in  part ;  and  their  report  w^as  read 
and  accepted. 

"  It  was  moved  to^adopt  so  much  of  the  report  as  relates  to  doctrinal  errors,  whereupon 
a  motion  was  made  to  amend  the  report  by  adding  to  the  specification  of  errors,  certain 
Others,  when,  after  some  debate,  it  was 

"  Resolved,  That  the  whole  subject  be  postponed,  and  made  the  order  of  the  day  for 
to-morrow. 

♦'  Resolved,  That  that  part  of  the  report  which  refers  to  the  Plan  of  Union  between 
Presbyterians  and  Congreofationalists  in  the  new  settlements,  adopted  in  1801,  be  made 
the  order  of  the  day  for  this  afternoon. 

"  Afternoon,  <^c. — The  Assembly  proceeded  to  the  order  of  the  day,  viz :  that  part 
of  the  report  of  the  Committee  on  Overture  No.  1,  which  relates  to  the  '  Plan  of  Union' 
adopted  in  1801. 

"  The  report  was  read,  and  adopted,  in  part,  as  follows,  viz: 

"In  regard  to  the  relation  existing'  between  the  Presbyterian  and  Congregational 
Churches,  the  committee  recommend  the  adoption  of  the  following  resolutions: 

"  1.  That  between  these  two  branches  of  the  American  Church,  there  ought,  in  the 
judgment  of  this  Assembly,  to  be  maintained  sentiments  of  mutual  respect  and  esteem, 
and,  for  that  purpose,  no  reasonable  efforts  should  be  omitted  to  preserve  a  perfectly 
good  understanding  between  these  branches  of  the  Church  of  Christ. 

"2.  That  it  is  expedient  to  continue  the  plan  of  friendly  intercourse,  between  this 
Church  and  the  Congregational  Churches  of  New  England,  as  it  now  exists." 

"  A  third  resolution,  to  abrogate  the  '  Plan  of  Union,'  was  discussed  for  some  time. 

"  Adjourned  till  9  o'clock  to-morrow  morning. 

"  Tuesday  morning.  May  23d,  dSj-c. — The  orders  of  the  day,  viz:  that  part  of  the  re- 
port of  the  Committee  on  Overture  No.  1,  which  relates  to  doctrinal  errors,  was  post- 
poned, with  a  view  of  resuming  the  unfinished  business  of  yesterday,  viz:  that  part  of 
the  report  of  the  same  committee,  which  recommends  the  abrogation  of  the  'Plan  of 
Union.' 

"  The  third  resolution  on  this  subject  was  taken  up,  and  discussed  for  a  considerable 
time. 

"  Adjourned  till  this  afternoon  at  half-past  3  o'clock. 

"  Afternoon,  (Sfc. — The  Assembly  resumed  the  unfinished  business  of  this  morning, 
viz :  that  part  of  the  report  of  the  Committee  on  Overture  No.  1,  which  recommends 
the  abrogation- of  the  '  Plan  of  Union.'  The  resolution  was  discussed  for  some  time, 
when  the  previous  question  was  demanded,  and  decided  in  the  affirmative,  by  yeas  and 
nays,  as  follows,  viz: 

"  'Shall  the  main  question  be  now  putl'  " 

Then  follow  the  yeas,  129;  and  the  nays,  123. 

"  The  resolution  was  then  adopted,  by  yeas  and  nays,  as  follows,  viz: 

"3.  But  as  the  '  Plan  of  Union,'  adopted  for  the  new  settlements  in  1801,  was  ori- 
ginally an  unconstitutional  act  on  the  part  of  that  Assembly — these  important  standing 
rules  having  never  been  submitted  to  the  Presbyteries — and  as  they  were  totally  desti- 
tute of  authority,  as  proceeding  from  the  General  Association  of  Connecticut,  which  is 
invested  with  no  power  to  legislate  in  such  cases,  and  especially  to  enact  laws  to  regu- 
late churches  not  within  her  limits;  and  as  much  confusion  and  irregularity  have  arisen 
from  this  unnatural  and  unconstitutional  system  of  union,  therefore,  it  is 

"  Resolved,  That  the  act  of  the  Assembly  of  1801,  entitled  a  '  Plan  of  Union,'  be, 
arid  the  same  is  hereby,  abrogated.'  "    See  Digest,  pp.  297-299. 

Then  follow  the  yens,  143  ;  and  the  7iays,  110. 


38  PRESBYTERIAN  CHURCH  CASE. 

"  Wednesday  afternoon,  May  24<7i. — The  Committee  on  Overture  No.  1,  viz :  '  The 

testimony  and  memorial  of  the  Convention,'  made  a  further  report, '  respecting  so  much 
of  the  memorial  as  relates  to  the  to'eration  of  gross  errors  in  doctrine,  or  disorders  in 
practice,  by  inferior  judicatories.'  The  report  was  read,  and  accepted.  The  report 
was  ihen  re-committed,  and  the  committee  was  instructed  to  make  a  full  report  on  the 
memorial  as  soon  as  convenient. 

"  The  Assembly  proceeded  to  the  orders  of  the  day,  postponed  from  yesterday,  viz: 
that  part  of  the  report  of  the  Committee  on  the  Memorial  which  relates  to  doctrinal 
errors;  when,  the  motion  to  amend  the  report  by  adding  to  the  specification  of  errors 
certain  otl)er3,  was  discussed  for  some  time.  It  was  then  moved  that  the  amendment 
be  inderinitely  postponed ;  and,  after  some  debate,  the  Assembly  adjourned  till  to-morrow 
morning  at  nine  o'clock. 

"  Thursday  morning,  May  25th. — A  motion  was  made  that  the  Assembly  now  take 
up  so  much  of  the  report  of  the  Committee  on  the  Memorial,  as  relates  to  the  tolera- 
tion of  disorders  in  practice,  and  errors  in  doctrine,  by  inferior  judicatories.  Adjourned 
till  this  afternoon  at  half-past  3  o'clock. 

*'  Afternoon. — The  House  resumed  the  unfinished  business  of  this  morning,  viz  :  the 
motion  to  take  up  that  part  of  the  report  of  the  Committee  on  the  Memorial  which  re- 
lates to  the  toleration  of  disorders' in  practice,  and  errors  in  doctrine,  by  inferior  judica- 
tories. The  motion  was  carried.  And  resolutions,  to  cite  to  the  bar  of  the  next  As- 
sembly such  inferior  judicatories  as  shall  appear  to  be  charged,  by  common  fame,  with 
irregiilarities,  were  offered,  and  debated  a  considerable  time. 

"  Friday  morning,  May  26th. — The  Assembly  resumed  the  unfinished  business  of 
yesterday,  viz:  the  resolutions  to  cite  to  the  bar  of  the  next  Assembly  such  inferior 
judicatories  as  shall  appear  to  be  charged,  by  common  fame,  with  the  toleration  of  gross 
errors  in  doctrine,  and  disorders  in  practice ;  and,  after  debate,  the  Assembly  adjourned 
till  the  afternoon. 

'■^Afternoon. — The  Assembly  resumed  the  unfinished  business  of  the  morning,  viz: 
the  resolutions  to  cite  to  the  bar  of  the  next  Assembly  such  inferior  judicatories  as  may 
be  charged,  by  common  fame,  with  the  toleration  of  gross  errors  in  doctrine,  and  dis- 
orders in  practice;  and,  after  debate,  the  previous  question  was  demanded,  and  decided 
in  the  affirmative,  by  yeas  and  najs,  as  follows,  viz: 

"  '  Shall  the  main  question  be  now  put'!'  " 

Then  follow  the  yeas,  141;  and  the  nays,  108. 

"The  resolutions  were  then  adopted,  by  yeas  and  nays,  as  follows,  viz; 

"1.  Resolved,  That  the  proper  steps  be  now  taken,  to  cite  to  the  bar  of  the  next 
Assembly  such  inferior  judicatories  as  are  charged,  by  common  fame,  with  irregu- 
larities. 

"2.  That  a  special  committee  be  now  appointed,  to  ascertain  what  inferior  judicato- 
ries are  thus  charged  by  common  fame,  prepare  charges  and  specifications  against 
them,  and  to  digest  a  suitable  plan  of  procedure  in  the  matter;  and  that  s^id  committee 
be  requested  to  report  as  soon  as  practicable. 

•'  3.  That,  as  citations  on  the  foregoing  plan  is  the  commencement  of  a  process  in- 
volving the  right  of  membership  in  the  Assembly;  therefore.  Resolved,  That  agreeably 
to  a  principle  laid  down,  Chap.  V.  Sect.  Otli,  of  the  '  Form  of  Government,'  the  mem- 
bers of  said  judicatories  be  excluded  from  a  seat  in  the  next  Assembly  until  their  case 
shall  be  decided." 

Then  follow  the  yeas,  128  ;  and  the  nays,  122  ;  non-liqiiet,  1. 

"  Resolved,  That  the  committee  to  be  appointed  under  the  foregoing  resolutions,  con- 
sist of  five  members. 

"  Mr.  Hay,  for  himself  and  others,  gave  notice  of  a  protest  against  the  foregoing  reso- 
lutions. 

"  Mr.  Cleaveland,  for  himself  and  others,  gave  notice  of  a  protest  against  the  reso- 
lutions, adopted  on  Thursday  last,  abrogating  the  'Plan  of  Union.' 

"Mr.  Breckinridge  gave  notice  that  he  would,  to-morrow  morning,  offer  a  resolution 
to  appoint  a  committee,  to  consist  of  equal  numbers  from  the  majority  and  minority  on 
the  vote  to  cite  inferior  judicatories,  to  inquire  into  the  expediency  of  a  voluntary  divi- 
sion of  the  Presbyterian  Church. 

"  Saturday  morning.  May  21th. — Agreeably  to  notice,  given  last  evening,  Mr. 
Breckinridge  moved  that  a  committee  of  ten  members,  of  whom  an  equal  number  shall 


TESTIMONY  FOR  THE  RELATORS.  39 

be  from  the  majority  and  minority  of  the  vote  on  the  resolutions  to  cite  inferior  judica- 
tories, be  appointed  on  the  state  of  the  Church. 

"Dr.  Junkin  and  Mr.  Evving,  on  the  part  of  the  majority,  and  Messrs.  A.  Campbell 
and  Jesup,  on  the  part  of  the  minority,  were  appointed  to  nominate  each  five  members 
of  the  committee  on  the' foregoing  resolutions. 

"  Dr.  Junkin  and  Mr.  Campbell,  from  the  committees  to  nominate  the  Committee  of 
Ten  on  the  State  of  the  Church,  respectfully  reported  the  following-  nomination,  viz; 
Mr.  Breckinridge,  Dr.  Alexander,  Dr.  Cuyler,  Dr.  VVitherspoon,  and  Mr.  Ewmg,  on 
the  part  of  the°majority ;  and  Dr.  McAuley,  Dr.  Beman,  Dr.  Peters,  Mr.  Dickinson, 
and  Mr.  Jesup,  on  the  part  of  the  mmority.  The  report  was  adopted  ;  and  the  com- 
mittee was  directed  to  meet  in  the  house  at  the  rising  of  the  Assembly  this  morning, 
and  afterwards  on  their  own  adjournments. 

"  On  motion,  the  Assembly  engaged  m  prayer  on  behalf  of  this  committee,  and  of  the 
subject  referred. to  them. 

"  Tuesday  morning,  May  Z^th. — The  Committee  on  the  State  of  the  Church  re- 
jlorted,  by  their  chairman,  Dr.  Alexander,  that  they  had  not  been  able  to  agree,  and 
asked  to  be  discharged. 

"Both  portions  of  the  committee  then  made  separate  reports,  accompanied  by  various 
papers;  which  reports  and  papers  were  ordered  to  be  entered  upon  the  Minutes  of  the 
Assembly,  and  are  as  follows,  viz  : 

'report  of  the  committee  of  the  majority. 

"  The  Committee  of  the  Majority,  from  the  United  Committee  on  the  State  of  the 
Church,  beg  leave  to  report: 

"That  having  been  unable  to  agree  with  the  Minority's  Committee  on  any  plan  for 
the  imm^'diate  and  voluntary  separation  of  the  New  and  Old-school  parties  in  the  Pres- 
byterian Church,  they  lay  before  the  General  Atsen.bly  the  papers  which  passed  be- 
tween the  committees,  and  wiiich  contain  all  the  important  proceedmgs  of  both 
bodies. 

''•  These  papers  are  marked  1  to  -5  of  the  majority,  and  1  to  4  of  the  minority.  A  care- 
ful examination  of  them  will  show  that  the  twocsimmiltees  were  agreed  in  the  following 
matters,  namely : 

"1.  The  propriety  of  a  voluntary  separation  of  the  parties  in  our  church;  and  their 
separate  organization. 

"  2.  As  to  the  corporate  funds,  the  names  to  be  held  by  each  denomination,  the  Re- 
cords of  the  Church,  and  its  Boards  and  Institutions. 

"  It  will  further  appear,  that  the  committees  were  entirely  unable  to  agree,  on  the  fol- 
lowing points,  namely: 

"1.  As  to  the  propriety  of  entering  at  once,  by  the  Assembly,  upon  the  division,  or 
the  sending  down  of  the  question  to  the  Presbyteries. 

"  2.  As  to  the  power  of  the  Assembly  to  take  effectual  initiative  steps,  as  proposed  by 
the  majority;  or  the  necessity 'of  obtaining  a  change  in  the  constitution  of  the  Church. 

"  3.  As  to  the  breaking  up  of  the  succession  of  this  General  Assembly,  so  that 
neither  of  the  new  Assemblies  proposed,  to  be  considered  this  proper  body  continued  ; 
or  that  the  body  which  should  retain  the  name  and  institutions  of  the  General  Assembly 
of  the  Presbyterian  Church  in  the  United  States  of  America,  should  be  held  in  fact  and 
law,  to  be  the  true  successors  o(  this  body.  While  the  Committee  of  the  Majority  were 
perfectly  disposed  to  do  all  that  the  utmost  liberality  could  demand,  and  to  use  in  all 
cases  such  expressions  as  should  be  wholly  unexceptionable;  yet  it  appeared  to  us  in- 
dispensable to  take  our  final  stand  on  these  grounds. 

"For,  first,  we  are  convinced  that  if  any  thing  tending  towards  a  voluntary  separation 
is  done,  it  is  absolutely  necessary  to  do  it  effectually,  and  at  once. 

^^  Secondly.  As  neither  party  professes  any  desire  to  alter  any  constitutional  rule 
whatever,  it  seems  to  us  not  only  needless,  but  absurd,  to  send  down  an  overture  to  the 
Presbyteries  on  this  subject.  We  believe  moreover  that  full  power  exists  in  the  As- 
sembly, either  by  consent  of  parties,  or  in  the  way  of  discipline,  to  settle  this,  and  all 
such  cases;  and  that  its  speedy  settlement  is  greatly  to  be  desired. 

"  Thirdly,  In  regard  to  the  succession  of  the  General  Assembly,  this  committee 
could  not,  in  present  circumstances,  consent  to  any  thing  that  should  even  imply  the 
final  dissolution  of  the  Presbyterian  church,  as  now  organized  in  this  country ;  which 
idea,  it  will  be  observed,  1r  at  the  basis  of  the  plan  of  the  minority;  insomuch  that  even 


40 


PRESBYTERIAN  CHURCH  CASE. 


the  body  retaining  the  name  and  institutions  should  not  be  considered  the  successor  of  this 
body. 

"  Finally.  It  will  be  observed  fr-^m  our  fifth  paper,  as  compared  with  the  fourth  pa- 
per of  the  Minority's  Commiltee,  that  the  final  shape  which  their  proposal  assumed,  was 
such,  that  it  was  impossible  for  the  majority  of  the  house  to  carry  out  its  views  and 
wishes,  let  the  vote  be  as  it  might.  For  if  the  house  should  vote  for  the  plan  of  the 
Committee  of  the  Majority,  the  other  committee  would  not  consider  itself,  or  its  friends, 
bound  thereby  :  and  voluntary  division  would  therefore  be  impossible,  in  that  case.  But 
if  the  house  should  vote  for  the  minority's  plan,  then— the  foregoing  insuperable  objec- 
tions to  that  plan  being  supposed  to  be  surmounted — still  the  whole  case  would  be  put 
off,  perhaps  indefinitely. 

"A.  Alexander,  C.  C.  Cuyler,  J.  Witherspoon,  N.  Ewing,  R.  J.  Breckinridge." 

REPORT   OF  THE   COMMITTEE   OF   THE   MINORITY. 

"The  subscribers,  appointed  members  of  the  Committee  of  Ten  on  the  State  of  the 
Church,  respectfully  ask  leave  to  report,  as  follows: 

"  It  being  understood  that  one  object  of  the  appointment  of  said  committee  was  to  con- 
sider the  expediency  of  a  voluntary  division  of  the  Presbyterian  Church,  and  to  devise  a 
plan  for  the  same,  they,  in  connexion  with  the  other  members  of  the  committee,  have 
had  the  subject  under  deliberation. 

"The  subscribers  had  believed  that  no  such  imperious  necessity  for  a  division  of  the 
church  existed,  as  some  of  their  brethren  supposed,  and  that  the  consequences  of  divi- 
sion would  be  greatly  to  be  deprecated.  Such  necessity,  however,  being  urged  by  many 
of  our  brethren,  we  have  been  induced  to  yield  to  their  wishes,  and  to  admit  the  expe- 
diency of  a  division,  provided  the  same  could  be  accomplished  in  an  amicable,  equitable, 
and  proper  manner.  We  have  accordingly  submitted  the  following  propositions  to  our 
brethren  on  the  other  part  of  the  same  committee,  who  at  the  same  time  submitted  to  us 
their  proposition,  which  is  annexed  to  this  report. 

♦'  [Here  read  the  Proposition  marked  Minority  No.  1,  and  Majority  No.  1.] 

"Being  informed  by  the  other  members  of  the  committee,  that  they  had  concluded 
not  to  discuss  in  committee  the  propositions  which  should  be  submitted,  and  that  all  pro- 
positions on  both  sides  were  to  be  in  writing,  and  to  be  answered  in  writing,  the  follow- 
ing papers  passed  between  the  two  parts  of  the  committee:  Here  read, 
No.  2,  Minority  paper. 

2,  Majority      " 

3,  Majority      " 

3,  Minority      " 

4,  Majority      " 

4,  Minority      " 

5,  Majority      " 

"From  these  papers  it  will  be  seen,  that  the  only  question  of  any  importance  upon 
which  the  commiltee  differed,  was  that  proposed  to  be  submitted  to  the  decision  of  the 
Assembly,  as  preliminary  to  any  action  upon  the  details  of  either  plan.  Therefore,  be- 
lieving that  the  members  of  this  Assembly  have  neither  a  constitutional  nor  moral  right 
to  adopt  a  plan  for  a  division  of  the  Church,  in  relation  to  which  they  are  entirely  un- 
instructed  by  the  Presbyteries;  believing  that  the  course  proposed  by  their  brethren  of 
the  committee  to  be  entirely  inefficacious,  and  calculated  to  introduce  confusion  and 
discord  into  the  whole  Church,  and  instead  of  mitigating,  to  enhance  the  evils  which  it 
proposes  to  remove;  and  regarding  the  plan  proposed  by  themselves,  with  the  modifi- 
cations thereof  as  before  stated,  as  presenting  in  general  the  only  safe,  certain  and  con- 
stitutional mode  of  division,  the  subscribers  do  respectfully  present  the  same  to  the  As- 
sembly for  their  adoption  or  rejection. 

"Thomas  M'Auley,  N.  S.  S.  Beman,  Absalom  Peters,  B.  Dickinson,  William  Jesup." 

"  No.  1,   OF   THE   MAJORITY. 

"  The  portion  of  the  committee  which  represents  the  majority,  submit  for  considera- 
tion: 

"  1.  That  the  peace  and  prosperity  of  the  Presbyterian  Church  in  the  United  States, 
require  a  separation  of  the  portions  called  respectively  the  Old  and  New-school  parties, 
and  represented  by  the  majority  and  minority  in  the  present  Assembly. 


TESTIMONY  FOR  THE  RELATORS,  41 

"2.  T^hat  the  portion  of  the  church  represented  by  the  majority  in  the  present  Gene- 
ral Assembly,  ought  to  retain  the  name  and  the  corporate  property  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America. 

*'3.  That  the  two  parties  ought  to  form  separate  denominations,  under  separate  or- 
ganizations; that  to  effect  this  with  the  least  delay,  the  commissioners  in  the  present 
General  Assembly  shall  elect  which  body  they  will  adhere  to,  and  this  election  shall 
decide  the  position  of  their  Presbyteries  respectively  for  the  present;  that  every  Pres- 
bytery may  reverse  the  decision  of  its  present  commissioners,  and  unite  \yith  the  oppo- 
site body  by  the  permission  of  that  body  properly  expressed;  that  minorities  of  Presby- 
teries, if  large  enough,  or  if  net,  then  in  connexion  with  the  neighboring  minorities, 
may  form  new  Presbyteries,  or  attach  themselves  to  existing  Presbyteries  in  union  with 
either  body,  as  shall  be  agreed  on  ;  that  Synods  ought  to  take  order  and  make  election 
on  the  general  principles  already  stated ;  and  minorities  of  Synods  should  follow  out 
the  rule  suggested  for  minorities  of  Presbyteries,  as  far  as  they  are  applicable. 

"  No.   1,   OF   THE   MINORITY. 

"  Whereas,  the  experience  of  many  years  has  proved  that  this  body  is  too  large  to 
answer  the  purposes  contemplated  by  the  constitution,  and  there  appears  to  be  insuper- 
able obstacles  in  the  way  of  reducing  the  representation: 

"  And  whereas,  in  the  extension  of  the  church  over  so  great  a  territory,  embracing 
such  a  variety  of  people,  difference  of  view  in  relation  to  important  points  of  church 
policy  and  action,  as  well  as  theological  opinion,  are  found  to  exist: 

"  Now,  it  is  believed,  a  division  of  this  body  into  two  separate  bodies,  which  shall  act 
independently  of  each  other,  will  be  of  vital  importance  to  the  best  interests  of  the  Re- 
deemer's kingdom. 

"Therefore,  Resolved,  That  the  following  rules  be  sent  down  to  the  Presbyteries  for 
their  adoption  or  rejection  as  constitutional  rules,  to  wit: 

"1.  The  General  Assembly  of  the  Presbyterian  Church  in  the  United  Slates  of 
America  shall  be,  and,  it  is  hereby  divided  into  two  bodies:  the  one  thereof  to  be  called 
the  General  Assembly  of  the  Presbyterian  Church  in  the  United  Stales  of  America, 
and  the  other,  the  General  Assembly  of  the  American  Presbyterian  Church. 

"2.  That  the  Confession  of  Faith  and  form  of  government  of  the  Presbyterian  Church 
of  the  United  States  of  America,  as  it  nnw  exists,  shall  continue  to  be  the  Conlession  of 
Faith  and  form  of  government  of  both  bodies,  until  it  shall  be  constitutionally  changed 
and  altered  by  either,  in  the  manner  prescribed  therein. 

"3.  That  in  sending  up  their  commissioners  to  the  next  General  Assembly,  each 
Presbytery,  after  having,  in  making  out  their  commissions,  followed  the  form  now  pre- 
scribed, shall  add  thereto  as  follows :  "  That  in  case  a  majority  of  the  Presbyteries  shall 
have  voted  to  adopt  the  plan  for  organizing  two  General  Assemblies,  we  direct  our  said 
commissioners  to  attend  the  meeting  of  the  General  Assembly  of  the  '  Presbyterian 
Church  of  the  United  States  of  America,'  or  the  'American  Presbyterian  Church,'  as 
the  case  may  be."  And  after  the  opening  of  the  next  General  Assembly,  and  before 
proceeding  to  other  business  than  the  usual  preliminary  organization,  the  said  Assembly 
shall  ascertain  what  is  the  vote  of  the  Presbyteries,  and  in  case  a  majority  of  said  Pres- 
byteries shall  have  adopted  these  rules,  then  the  two  General  Assemblies  shall  be  con- 
stituted and  organized  in  the  manner  now  pointed  out  in  the  form  of  government,  by 
the  election  of  their  respective  moderators,  stated  clerks,  and  other  officers. 

"4.  The  several  Presbyteries  shall  be  deemed  and  taken  to  belong  to  that  Assenibly 
with  which  they  shall  direct  their  commissioners  to  meet,  as  stated  in  the  preceding 
rule.  And  each  General  Assembly  shall,  at  their  first  meeting,  as  aforesaid,  organize 
the  Presbyteries  belonging  to  each  into  Synods.  And  in  case  any  Presbytery  shall  fail 
to  decide  as  aforesaid  at  that  time,  they  may  attach  themselves  within  one  year  there- 
after to  the  Assembly  they  shall  prefer. 

"  5.  Churches  and  members  of  churches,  as  well  as  Presbyteries,  shall  be  at  full  liber- 
ty to  decide  to  which  of  said  Assemblies  they  will  be  attached,  and  in  case  the  majority 
of  male  members  in  any  church  shall  decide  to  belong  to  a  Presbytery  connected  with 
the  Assembly  to  which  their  Presbytery  is  not  attached,  they  shall  certify  the  same  to 
the  Stated  Clerk  of  the  Presbytery  which  they  wish  to  leave  and  the  one  with  which 
they  wish  to  unite,  and  they  shall,  ipso  facto,  be  attached  to  such  Presbytery. 

"6.  It  shall  be  the  duty, of  Presbyteries,  at  their  first  meeting  after  the  adoption  of 
these  rules,  or  within  one*year  thereafter,  to  grant  certificates  of  dismission  to  such 

6 


42  TRESBYTERIAN  CIIUKCH  CASE. 

ministers,  licentiates,  and  students,  as  may  wish  to  unite  with  a  Presbytery  attached  to 
the  other  General  Assembly. 

"  7.  It  shall  be  the  duty  of  churcfh  sessions  to  grant  letters  of  dismission  to  such  of 
their  members,  being  in  regular  standing,  as  may  apply  for  the  same  within  one  year 
after  the  organization  of  said  Assemblies  under  these  rules,  for  the  purpose  of  uniting 
with  any  church  attached  to  a  Presbytery  under  the  care  of  the  other  General  Assem- 
bly; and  if  such  session  refuse  to  dismiss,  it  shall  be  lawful  for  such  members  to  unite 
with  such  other  church  in  the  same  manner  as  if  a  certificate  were  given. 

"  8.  The  Boards  of  Education  and  Missions  shall  continue  their  organizations  as  here- 
tofore, until  the  next  meeting  of  the  Assembly ;  and  in  case  the  rules  for  the  division  of 
the  Assembly  be  adopted,  those  Boards  shall  be,  and  hereby  are  transferred  to  the  Gene- 
ral Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America,  if  that  As- 
sembly at  its  first  meeting  shall  adopt  the  Boards  as  their  organizations;  and  the  seats 
of  any  ministers  or  elders  in  those  Boards,  not  belonging  to  that  General  Assembly,  shall 
be  deemed  to  be  vacant. 

"  9.  The  records  of  the  Assembly  shall  remain  in  the  hands  of  the  present  Stated 
Clerk,  for  the  mutual  use  and  benefit  of  both  General  Assemblies,  until,  by  such  an 
arrangement  as  they  may  adopt,  they  shall  appoint  some  other  person  to  take  charge  of 
the  same.  And  either  Assembly,  at  their  own  expense,  may  cause  such  extracts  and 
copies  to  be  mdde  thereof,  as  they  may  desire  and  direct, 

"  10.  The  Princeton  Seminary  funds  to  be  transferred  to  the  Board  of  Trustees  of  the 
seminary,  if  it  can  be  so  done  legally  and  without  forfeiting  the  trusts  upon  which  the 
grants  were  made;  and  if  it  cannot  be  done  legally,  and  according  to  the  intention  of 
the  donors,  then  to  remain  with  the  present  Board  of  Trustees  until  legislative  autho- 
rity be  given  for  such  transfer.  The  supervision  of  said  seminary,  in  the  same  manner 
in  which  it  is  now  exercised  by  the  General  Assembly,  to  be  transferred  to  and  vested 
in  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  to  be  consti- 
tuted. The  other  funds  of  the  church  to  be  divided  equally  between  the  two  Assem- 
blies. 

"  Pass  a  resolution  suspending  the  operation  of  the  controverted  votes  until  after  the 
next  Assembly. 

•'  No.  2,  OF  THE  MINORITY. 

"The  Committee  of  the  Minority,  &c.,  make  the  following  objections  to  the  proposi- 
tion of  the  majority : 

"  1.  To  any  recognition  of  the  terms,  "  Old  and  New-schools,"  or  "  majority  and  mi- 
nority," of  the  present  Assembly,  in  any  action  upon  the  subject  of  division,  the  mino- 
rity expect  the  division  in  every  respect  to  be  equal ;  no  other  would  be  satisfactory. 

"2.  Insisting  upon  an  equal  division,  we  are  willing  that  that  portion  of  the  church 
which  shall  choose  to  retain  the  present  Boards,  shall  have  the  present  name  of  the  As- 
sembly. The  corporate  property  which  is  susceptible  of  division  to  be  divided,  as  the 
only  fair  and  just  course. 

"  3.  We  object  to  the  power  of  the  commissioners  to  make  any  division  at  this  time, 
and  as  individuals  we  cannot  assume  the  responsibility. 

"  No.  2,  OF  THE  MAJORITY. 

"  The  Committee  of  the  Majority,  having  considered  the  paper  submitted  by  that  of 
the  minority,  observe : 

"  1.  That  they  suppose  the  propriety  and  neccfsity  of  a  division  of  the  church  may  be 
considered  as  agreed  on  by  both  committees;  but  we  think  it  not  expedient  to  attempt 
giving  reasons  in  a  preamble  ;  the  preamble  is  therefore  not  agreed  to. 

"  2.  So  much  of  No.  1,  of  the  plan  of  the  Committee  of  the  Minority,  as  relates  to  the 
proposed  names  of  the  new  General  Assemblies,  is  agreed  to. 

"  3.  Nos.  1  to  8,  inclusive,  except  as  above,  are  not  agreed  to,  but  our  proposition. 
No.  3,  in  our  first  paper,  is  insisted  on.  But  we  agree  to  the  proposal  in  regard  to  single 
churches,  individual  ministers,  licentiates,  students,  and  private  members. 

"4.  In  lieu  of  No.  9,  we  propose  that  the  present  Stated  Clerk  be  directed  to  make- 
out  a  complete  copy  of  all  our  records,  at  the  joint  expense  of  both  the  new  bodies,  and 
after  causing  the  copy  to  be  examined  and  certified,  deliver  it  to  the  wrttten  order  of 
the  Moderator  and  Stated  Clerk  of  the  General  Assembly  of  the  American  Presbyterian* 
Church, 


TESTIMONY  FOR  THE  RELATORS.  43 

"  5,  We  agree,  in  substance,  to  the  proposal  in  No.  10,  and  offer  the  following  as  the 
form  in  which  the  proposition  shall  stand  ;  that  the  corporate  funds  and  property  of  the 
church,  so  far  as  they  appertain  to  the  Tlieological  Seminary  at  Princeton,  or  relate  to 
the  Professors'  support,  or  the  education  of  beneficiaries  there,  shall  remain  the  property 
of  the  body  retaining  the  name  of  the  General  Assembly  of  the  Presbyterian  Church  in 
the  United  States  of  America ;  that  all  other  funds  shall  be  equally  divided  between 
the  new  bodies,  so  far  as  it  can  be  done  in  conformity  with  the  intentions  of  the  donors; 
and  that  all  liabilities  of  the  present  Assembly  shall  be  discharged  in  equal  portions  by 
them  ;  that  all  questions  relating  to  the  future  adjustment  of  this  whole  subject  upon  the 
principle  now  agreed  on,  shall  be  settled  by  committees  appointed  by  the  new  Assem- 
blies at  their  first  meeting  respectively ;  and  if  these  committees  cannot  agree,  then 
,each  committee  shall  select  one  arbitrator,  and  these  two,  a  third,  which  arbitrators  shall 
have  full  power  to  settle  finally  the  whole  case  in  all  its  parts;  and  that  no  person  shall 
be  appointed  an  arbitrator,  who  is  a  member  of  either  church;  it  being  distinctly  un- 
derstood that  whatever  difficulties  may  arise  in  the  construction  of  trusts,  and  all  other 
q'uestioris  of  power,  as  well  as  right,  legal  and  equitable,  shall  be  finally  decided  by  the 
committees,  so  as  in  all  cases  to  prevent  an  appeal  by  either  party  to  the  legal  tribunals 
of  the  country. 

"  No.  3,  OF  THE  MINORITY. 

"  1.  We  accede  to  the  proposition  to  have  no  preamble. 

"  2.  We  accede  to  the  proposition  No.  4,  modifying  our  proposition  No.  9,  in  relation 
to  the  records  and  copies  of  the  records.  The  copy  to  be  made  within  one  year  after 
the  division. 

"  3.  We  assent  to  the  modification  of  No.  10,  by  No.  5  of  the  propositions  submitted, 
with  a  trifling  alteration  in  the  phraseology,  striking  out  the  words,  "  shall  remain  the 
property  of  the  body  retaining  the  name  of  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America,"  and  inserting  the  words,  "shall  be  transferred 
and  belong  to  the  General  Assembly  of  the  Presbyterian  Church  of  the  United  States  of 
America,  hereby  constituted." 

"4.  We  cannot  assent  to  any  division  by  the  present  commissioners  of  the  Assembly, 
as  it  would  in  no  wise  be  obligatory  on  any  of  the  judicatories  of  the  church,  or  any 
members  of  the  churches.  The  only  effect  would  be  a  disorderly  dissolution  of  the  pre- 
sent Assembly,  and  be  of  no  binding  force  or  effect  upon  any  member  who  did  not  assent 
to  it. 

"  5.  We  propose  a  resolution  to  be  appended  to  the  Rules,  and  which  we  believe,  if 
adopted  by  the  committee,  would  pass  with  great  unanimity,  urging  in  strong  terms  the 
adoption  of  the  Rules  by  the  Presbyteries;  and  the  members  of  the  minority  side  of  the 
committee  pledge  themselves  to  use  their  influence  to  procure  the  adoption  of  the  same 
by  the  Presbyteries. 

"  No.  3,  OF  THE  MAJORITY. 

"  The  Committee  of  the  Majority,  in  relation  to  paper  No.  2,  observe  : 

"  1.  That  the  terms  '  Old  and  New-3chool,  majority  and  minority,'  are  meant  as  des- 
criptive, and  some  description  being  necessary,  we  see  neither  impropriety  nor  unsuita- 
bleness  in  them. 

"  2.  Our  previous  paper  No.  2,  having,  as  we  suppose,  substantially  acceded  to  the 
proposal  of  the  minority  in  relation  to  the  funds  in  their  first  paper,  we  deem  any  further 
statement  on  that  subject  unnecessary. 

"  3.  That  we  see  no  difficulty  in  the  way  of  settling  the  matter  at  present,  subject  to 
the  revision  of  the  Presbyteries,  as  provided  in  our  first  paper,  under  the  third  head ;  and 
as  "  no  constitutional  rules  "  are  proposed  in  the  way  of  altering  any  principles  of  our 
system,  we  see  no  constitutional  obstacle  to  the  execution  of  the  proposal  already  made. 
We  therefore  adhere  to  that  plan  nsour  final  proposal.  But  if  the  commissioners  of  any 
Presbytery  should  refuse  to  elect,  or  be  equally  divided,  then  the  Presbytery  which  they 
represent  shall  make  such  election  at  its  first  meeting  after  the  adjournment  of  the  pre- 
sent General  Assembly. 

"  No.  4,  OF  THE  MAJORITY. 

"  The  Committee  of  the  Majority,  &c.,  in  reply  to  paper  No.  3,  of  the  Minority's  Com- 
mittee, simply  refer  to  theft«wn  preceding  papers,  as  containing  tlieir  final  propositions. 


44  PRESBYTERIAN  CHURCH  CASE, 

"  No.  4,  OF  THE  MINORITY. 

"  The  Commillee  of  the  Minority,  in  reply  to  paper  No.  3,  of  the  majority,  observe: 

"That  they  will  unite  in  a  report' to  the  Assembly,  stating  that  the  committee  have 
agreed  that  it  is  expedient  that  a  division  of  the  Church  be  effected,  and,  in  general, 
upon  the  principles  upon  which  it  is  to  be  carried  out,  but  they  differ  as  to  the  manner 
of  effecting  it. 

"On  the  one  hand,  it  is  asked  that  a  division  be  made  by  the  present  Assembly,  at 
their  present  meeting;  and  on  the  other  hand,  that  the  plan  of  division,  with  the  subse- 
quent arrangement  and  organization,  shall  be  submitted  to  the  Presbyteries  for  their 
adoption  or  rejection. 

"  They  will  unite  in  asking  the  General  Assembly  to  decide  the  above  points  previous 
to  reporting  the  details,  and  in  case  the  Assembly  decide  in  favor  of  immediate  division, 
then  the  paper  No.  1,  of  the  majority,  with  the  modifications  agreed  on,  be  taken  as  the 
basis  of  the  report  in  detail, 

"  If  the  Assembly  decide  to  send  to  the  Presbyteries,  then  No.  1,  of  the  minority's 
papers,  with  the  modifications  agreed  on,  shall  be  the  basis  of  the  report  in  detail. 

"  The  Committee  of  the  Minority  cannot  agree  to  any  otiier  propositions  than  those 
already  submitted,  until  the  above  be  settled  by  the  Assembly. 

"  If  the  above  proposition  be  not  agreed  to,  or  be  modified  and  then  agreed  to,  they 
desire  that  each  side  may  make  a  report  to  the  Assembly  lo-morrow  morning. 

"No.    5,   OF   THE   MAJORITY. 

"  The  Committee  of  the  Majority,  &c.,  in  answer  to  No.  4,  &c,,  reply,  that  understand- 
ing from  the  verbal  explanations  of  the  Committee  of  the  Minority,  that  the  said  com- 
mittee would  not  consider  either  side  bound  by  the  vote  of  the  Assembly,  if  it  were 
against  their  views  and  wishes  respectively  on  the  point  proposed  to  be  submitted  to  its 
decision  in  said  paper,  to  carry  out  in  good  faith  a  scheme  which,  in  that  case,  could  not 
be  approved  by  them;  and  under  such  circumstances  a  roZimto-y  separation  being  mani- 
festly impossible,  this  committee  consider  No.  4  of  the  minority  as  virtually  a  waver  of 
the  whole  subject.  If  nothing  further  remains  to  be  proposed,  they  submit  that  the  pa- 
pers be  laid  before  the  Assembly,  and  that  the  united  Committee  be  dissolved. 

"The  Committee  on  the  State  of  the  Church  was  discharged. 

"  It  was  moved  that  the  further  consideration  of  the  reports  be  indefinitely  postponed; 
and,  after  debate, 

"  It  was  moved  that  this  whole  subject  be  laid  on  the  table  for  the  present.  The  mo- 
tion was  adopted,  by  yeas  and  nays,  as  follows,  viz,  yeas  138,  nays  137." 

Mr.  Randall.  Thus  the  proceedings  instituted  to  effect  an  amicable 
separation,  were  at  a  stand.  The  attempt  at  pacification  had  proved  abortive. 

"A  resolution  was  offered  that  the  Synod  of  the  Western  Reserve  is  not  a  part  of  the 
Presbyterian  Church." 

This  resolution  was  debated  on  Tuesday  afternoon,  Wednesday  morning.  May  31st, 
and  Wednesday  afternoon. 

"  Thursday  morning,  June  \sl. — The  Assembly  postponed  the  orders  of  the  day,  and 
resumed  tiie  unfinished  business  of  yesterday,  viz.,  the  motion'  to  postpone  the  further 
consideration  of  the  resolution  declaring  the  Synod  of  the  Western  Reserve  not  to  be  a 
part  of  the  Presbyterian  Church.  And  after  debate,  the  previous  question  was  demand- 
ed, and  decided  in  the  affirmative,  by  yeas  and  nays,  as  follows,  viz. 

"Shall  the  main  question  be  now  put?" 

Then  follow  the  yeas,  130,  and  the  nays,  102.     Non  liquet,  1. 

"  So  the  motion  to  postpone  was  cut  off.  And  then  the  original  resolution  was  adopt- 
ed, by  yeas  and  nays,  as  follows,  viz. 

Resolved,  That  by  the  operation  of  the  abrogation  of  the  Plan  of  Union  of  1801,  the 
Synod  of  the  Western  Reserve,  is,  and  is  hereby  declared  to  be  no  longer  a  part  of  the 
Presbyterian  Church  in  the  United  States  of  America. 

Then  follows  the  yeas,  132,  and  the  nays,  105. 

"  Thursday  afternoon. — "  A  motion  was  made  that  those  members  who  were  out  of 
the  house  when  the  last  vote  of  this  morning  was  taken,  bo  allowed  to  have  their  names 
entered  among  the  yeas  and  naye ;  after  debate,  this  motion  was  laid  on  the  table. 


TESTIMONY  FOR  THE  RELATORS.  45 

•«  The  Assembly  proceeded  to  the  order  of  the  day,  viz.  the  election  of  Trustees  of 
the  General  Assembly. 

"  A  motion  was  made  that  this  election  be  by  ballot,  and  decided  in  the  affirmative, 
by  yeas  68,  nays  6. 

"  Before  the  vote  wasannounced,  a  motion  was  made  directing  the  clerk  to  call  the 
names  of  members  of  the  Western  Reserve  Synod,  which  motion  the  Moderator  decided 
to  be  out  of  order ;  an  appeal  was  taken  from  the  Moderator,  and  the  house  sustained 
his  decision. 

"  Mr.  Jessup  presented  a  written  demand  that  the  members  of  the  Western  Reserve 
Synod  be  admitted  to  vote,  in  the  election  now  in  progress,  and  protesting  against  the 
rejection  of  their  votes. 

"  The  paper  was  laid  on  the  table. 
'     "  Friday  morning,  June  2d— A.  protest  against  the  resolutions  of  the  Assembly  abro- 
gating the  "Plan  ot  Union"  of  1801,  was  introduced  and  accepted;  and  it  was  referred 
to  Dr.  Junkin,  Dr.  Green,  and  Mr.  Anderson— to  be  answered. 

•  "  Saturday  morning,  June  3(/.— Mr.  Jessup  offered  a  paper,  purporting  to  be  a  pro- 
test from  the  commissioners,  members  of  the  Western  Reserve  Synod,  against  the  re- 
Bolution  of  this  Assembly,  declaring,  that  that  Synod  is  not  a  part  of  the  Presbyterian 
Church.  The  protest  vv/as  received,  read,  and  committed  to  Messrs.  Plumer,  JEwing, 
and  Woodhull — to  be  answered. 

"  Dr.  Beman  introduced  a  protest,  signed  by  himself  and  others,  against  the  resolutions 
of  this  Assembly  respecting  the  citation  of  such  inferior  judicatories  as  may  be  charged 
by  common  fame  with  irregularities,  and  against  the  resolution  of  this  Assembly  de- 
claring the  Synod  of  the  Western  Reserve  not  to  be  a  part  of  the  Presbyterian  Church. 
The  protest  was  read,  accepted,  and  committed  to  Messrs.  Breckinridge,  Annan,  and  C, 
S.  Todd — to  be  answered. 

"Resolutions  were  offered  by  Mr.  Breckinridge  respecting  the  connexion  of  the 
Synods  of  Utica,  Geneva,  and  Genesee,  with  the  Presbyterian  Church  of  the  United 
States.  A  division  of  the  question  was  called  for  by  Mr.  Jessup ;  and,  after  debate,  it 
was  moved  by  Mr.  Jessup  to  postpone  the  resolutions,  with  a  view  of  introducing  the 
following  substitute,  viz. 

"  Whereas,  it  has  been  alleged,  that  the  Synods  of  Geneva,  Genesee,  and  Utica,  of 
the  Presbyterian  Church  in  the  United  States  of  America,  have  been  guilty  of  impor- 
tant delinquency  and  grossly  unconstitutional  proceedings,  and  a  resolution  predicated 
on  this  allegation  to  exclude  the  said  Synods  from  the  said  Presbyterian  Church,  has 
been  offered  in  this  Assembly ;  and,  whereas,  no  specified  act  of  the  said  Synod  has 
been  made  the  ground  of  proceeding  against  that  body,  nor  any  specific  members  of  that 
body  have  been  designated  as  the  delinquents;  and,  whereas,  these  charges  are  denied 
by  the  commissioners  representing  those  bodies  on  this  floor,  and  an  inquiry  into  the 
whole  matter  is  demanded ;  and,  whereas,  a  majority  of  the  members  of  the  Synods  have 
'had  no  previous  notice  of  these  proceedings,  nor  of  the  existence  of  any  charge  against 
them,  individually  or  collectively,  nor  any  opportunity  of  defending  themselves  against 
the  charges  so  brought  against  them  : 

"  Therefore,  Resolved,  That  the  Synods  of  Utica,  Geneva,  and  Genesee,  be,  and 
hereby  are  cited  to  appear  on  the  third  Thursday  of  May  next,  at  Philadelphia,  before 
the  next  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  Ame- 
rica, to  show  what  they  have  done,  or  failed  to  do,  in  the  case  in  question,  and,  if  neces- 
Bary,  generally  to  answer  any  charges  that  may  or  can  be  alleged  against  them,  to  the 
end  that  the  whole  matter  may  be  examined  into,  deliberated  upon,  and  judged  of, 
according  to  the  Constitution  and  Discipline  of  the  Presbyterian  Church  in  the  United 
States  of  America. 

"  Monday  morning,  June  ^Ih. — The  Assembly  resumed  the  unfinished  business  of 
Saturday,  viz.  the  motion  to  postpone  the  resolution  offered  by  Mr.  Breckinridge, 
respecting  the  connexion  of  the  Synods  of  Utica,  Geneva,  and  Genesee,  with  the  Pres- 
byterian Church,  for  the  purpose  of  introducing  a  resolution  to  cite  those  Synods  to  the 
bar  of  the  next  Assem.bly. 

'■'■Monday  afternoon. — The  Assembly  resumed  the  unfinished  business  of  this  morn- 
ing, viz.  the  motion  to  postpone  the  resolutions  respecting  the  Synods  of  Utica,  Geneva, 
and  Genesee ;  and,  after  debate,  the  previous  question  was  demanded,  and  decided  in 
the  affirmative ;  and  the  motion  to  postpone  being  cut  off  by  the  previous  question,  the 
resolutions  were  divided,  and  the  first  was  adopted,  by  yeas  and  nays,  as  follows,  viz. 


46 


PRESBYTERIAN  CHURCH  CASE. 


'•  Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America, 

"  1.  That  in  consequence  of  the  abrogation,  by  this  Assembly,  of  the  Plan  of  Union 
of  1801,  between  it  and  the  General  Association  of  Connecticut,  as  utterly  unconstitu- 
tional, and  therefore  null  and  void  from  the  beginning-,  the  Synods  of  Utica,  Geneva, 
and  Genesee,  which  were  formed  and  attached  to  this  body  under  and  in  execution  of 
said  "  Plan  of  Union,"  be,  and  are  hereby  declared  to  be  out  of  the  ecclesiastical  con- 
nexion of  the  Presbyterian  Church  of  the  United  States  of  America,  and  that  they  are 
not  in  form  or  in  fact  an  integral  portion  of  said  church." 

Then  follow  yeas  115,  nays  88.     Non  liquet,  1. 

"  The  second,  third,  and  fourth  resolutions  were  then  adopted,  by  yeas  and  nays,  as 
follows,  viz. 

"  2.  That  the  solicitude  of  this  Assembly  on  the  whole  subject,  and  its  urgency  for 
the  immediate  decision  of  it,  are  greatly  increased  by  reason  of  the  gross  disorders  which 
are  ascertained  to  have  prevailed  in  those  Synods,  (as  well  as  that  of  the  Western 
Reserve,  against  which  a  declarative  resolution,  similar  to  the  first  of  these,  has  been 
passed  during  our  present  session,)  it  being  made  clear  to  us,  that  even  the  Plan  of 
Union  itself  was  never  consistently  carried  into  effect  by  those  professing  to  act 
under  it. 

"  3.  That  the  General  Assembly  has  no  intention,  by  these  resolutions,  or  by  that 
passed  in  the  case  of  the  Synod  of  the  Western  Reserve,  to  affect  in  any  way  the  minis- 
terial standing  of  any  members  of  either  of  said  Synods ;  nor  to  disturb  the  pastoral 
relation  in  any  church ;  nor  to  interfere  with  the  duties  or  relations  of  private  Christians 
in  their  respective  congregations;  but  only  to  declare  and  determine  according  to  the 
truth  and  necessity  of  the  case,  and  by  virtue  of  the  full  authority  existing  in  it  for  that 
purpose,  the  relation  of  all  said  Synods,  and  all  their  constituent  parts  to  this  body,  and 
to  the  Presbyterian  Church  in  the  United  States. 

"4.  That  inasmuch  as  there  are  reported  to  be  several  churches  and  ministers,  if  not 
one  or  two  Presbyteries,  now  in  connexion  with  one  or  more  of  said  Synods,  which  are 
strictly  Presbyterian  in  doctrine  and  order,  be  it,  therefore,  further  resolved,  that  all 
such  churches  and  ministers  as  wish  to  unite  with  us,  are  hereby  directed  to  apply  for 
admission  into  those  Presbyteries  belonging  to  our  connexion  which  are  most  convenient 
to  their  respective  locations;  and  that  any  such  Presbytery  as  aforesaid,  being  strictly 
Presbyterian  in  doctrine  and  order,  and  now  in  connexion  with  either  of  said  synods,  as 
may  desire  to  unite  with  us,  are  hereby  directed  to  make  application,  with  a  full  state- 
ment of  their  cases,  to  the  next  General  Assembly,  which  will  take  proper  order  thereon." 

Then  follow  yeas  113,  nays  60. 

"Some  disturbance  having  been  made  among  the  Spectators,  Mr.  Breckinridge 
moved  that  the  Assembly  will  hereafter  sit  with  closed  doors.  The  motion  was  laid  on 
the  table. 

"  Tuesday  morning,  June  6th. — The  following  resolutions  were  offered  by  Dr. 
Alexander,  viz. 

"  Resolved,  That  the  following  be  added  to  the  Rules  of  the  General  Assembly : 

"  1.  That  no  commissioner  from  a  newly  formed  Presbytery  shall  be  permitted  to 
take  his  seat,  nor  shall  such  commissioner  be  reported  by  the  Committee  on  Commis- 
sions, until  the  Presbytery  shall  have  been  duly  reported  by  the  Synod,  and  recognised 
as  such  by  the  Assembly ;  and  that  the  same  rule  apply  when  the  name  of  any  Presby- 
tery has  been  changed. 

"2.  When  it  shall  appear  to  the  satisfaction  of  the  General  Assembly,  that  any  new 
Presbytery  has  been  formed  for  the  purpose  of  unduly  increasing  the  representation,  the 
General  Assembly  will,  by  a  vote  of  the  majority,  refuse  to  receive  the  delegates  of 
Presbyteries  so  formed,  and  may  direct  the  Synod  to  which  such  Presbytery  belongs,  to 
reunite  it  to  the  Presbytery  or  Presbyteries  to  which  the  members  were  before  attached. 

"  After  debate,  it  was  moved  to  lay  the  resolutions  on  the  table.    The  motion  was 
decided,  by  yeas  and  nays,  as  follows,  viz. 
Then  follow  yeas  44,  nays  115. 

"  So  the  motion  to  lay  on  the  table  was  lost.  After  further  debate  the  resolutions 
were  carried. 


TESTIMONY  FOR  THE  RELATORS.  47 

"  Tuesday  afternoon. — A  protest,  signed  by  the  commissioners  from  the  Synods  of 
Genesee,  Geneva,  and  Utica,  against  the  resolutions  of  this  Assembly  declaring  those 
Synods  to  be  out  of  the  Presbyterian  Church,  was  received,  read,  and  referred  to  Dr. 
Witherspoon,  Mr.  Murray,  and  Dr.  Simpson — to  be  answered. 

"  Mr.  Breckinridge  offered  the  following  resolutions,  viz. 

"  Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America, 

"  1.  That  the  Presbyteries  of  Wilmington  and  the  Third  Presbytery  of  Philadelphia, 
be,  and  hereby  are  dissolved. 

"  2.  The  territory  embraced  in  these  Presbyteries  is  annexed  to  those  to  which  it  respec- 
tively appertained  before  their  creation.  Their  stated  clerks  are  directed  to  deposite 
■all  their  records  and  other  papers  in  the  hands  of  the  stated  clerk  of  the  Synod  of  Phila- 
delphia, on  or  before  the  first  day  of  the  sessions  of  that  Synod,  at  its  first  meeting  after 
the  Assembly  adjourns. 

.  "  3.  The  candidates  and  foreign  missionaries  of  the  Presbytery  of  Wilmington,  are 
hereby  attached  to  the  Presbytery  of  New  Castle;  and  those  of  the  Third  Presbytery 
of  Philadelphia,  to  the  First  Presbytery  of  Philadelphia. 

"  4.  The  ministers,  churches,  and  licentiates  in  the  two  Presbyteries  hereby  dissolved, 
are  directed  to  apply  without  delay  to  the  Presbyteries  to  which  they  most  naturally 
belong  for  admission  into  them ;  and  upon  application  so  made,  by  any  duly  organized 
.  Presbyterian  Church,  it  shall  be  received ;  hot  as  great,  long  continued,  and  increasing 
common  fame  charges  errors  and  irregularities  in  doctrine  and  order  on  both  these 
Presbyteries,  it  is  hereby  ordered,  that  all  Presbyteries  to  which  any  of  the  ministers  or 
licentiates  now  belonging  to  either  of  them  shall  apply  for  admission,  shall  strictly 
examine  them,  touching  their  soundness  in  the  faith,  and  other  matters,  as  shall  seem 
good  to  the  Presbyteries  to  which  application  for  admission  may  be  made. 

"  5.  If  either  of  the  aforesaid  Presbyteries,  or  any  church,  minister,  licentiate,  mis- 
sionary, or  candidate,  shall  fail  or  refuse  to  comply  with  the  terms  of  these  resolutions, 
according  to  their  true  intent,  said  Presbytery,  church,  or  person,  as  the  case  may  be,  is 
hereby  declared  to  be  thenceforward,  de  facto,  out  of  the  communion  of  the  Presbyterian 
Church  in  the  United  States  of  America,  and  no  longer  an  intregal  portion  thereof. 

"6.  These  resolutions  shall  be  in  force  from  and  after  the  final  adjournment  of  the 
present  sessions  of  the  General  Assembly. 

"  After  debate,  Mr.  Lowrie  moved  to  amend  these  resolutions,  by  striking  out  all 
after  the  word  'received,'  in  the  4th  resolution,  and  also  the  whole  of  the  5th  and  6th 
resolutions;  and,  after  debate,  it  was  moved  to  commit  this  whole  subject  to  a  special 
committee ;  and,  after  further  debate,  the  Assembly  adjourned  till  9  o'clock  to-morrow 
morning. 

"  Wednesday  morning,  June  1th, — Mr.  Breckinridge  offered  the  following  preamble 
and  resolutions,  viz : 

"  Whereas,  it  has  come  to  the  knowledge  of  this  General  Assembly,  that  the  persons 
who  were  appointed  commissioners  to  this  body  from  the  Presbyteries  attached  to  the 
Synod  of  the  Western  Reserve,  have  served  a  notice  upon  the  Treasurer  of  the  Trus- 
tees of  the  General  Assembly,  '  not  to  regard  any  orders  drawn,  nor  any  resolutions 
passed  by  this  Assembly,  since  the  passage  of  the  act  which  declared  said  Synod  of 
the  Western  Reserve  to  be  no  longer  in  the  connexion  of  the  body  represented  in  this 
General  Assembly ;'  and  whereas,  said  notice  is,  no  doubt,  to  be  considered  as  the  com- 
mencement of  a  series  of  judicial  investigations,  growing  out  of  the  proceedings  of  the 
Assembly,  in  reforming  the  Church,  during  its  present  sessions;  now,  therefore, 

"  Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,  1.  That  this  Assembly  expects  of  its  trustees  full  compliance  with 
all  its  acts,  as  in  past  times;  and  relies,  confidently,  on  their  continued  fidelity  to  the 
Church  in  the  discharge  of  all  the  important  duties  devolving  on  them. 

"  2.  That  the  Presbyterian  Church  is  morally  responsible,  and  will  fully  and  cheer- 
fully meet  that  responsibility,  to  sustain  their  trustees  in  all  their  acts,  in  consequence 
of  any  resolution  passed,  or  order  given  in  virtue  of  such  resolution,  of  the  present  or 
any  other  General  Assembly ;  and  to  hold  said  trustees  harmless,  by  reason  of  any  loss 
or  damage  they  may  personally  sustain  thereby. 

"3.  That  this  Assembly,  in  virtue  of  the  powers  vested  in  it  by  the  act  incorporating 
its  trustees,  do  hereby,  in  writing,  direct  their  trustees  to  continue  to  pay  as  heretofore, 
and  to  have  no  manner  of  respect  to  the  notice  mentioned  above,  nor  to  any  similar  no- 


48  PRESBYTERIAN  CHURCH  CASE. 

tice  that  may  come  to  their  knowledge.  And  these  resolutions,  duly  signed  and  cer- 
tified, shall  be  delivered  to  them  on  the  part  of  this  Assembly. 

"Mr.  Breckinridge  read  the  notice  referred  to  in  the  resolutions;  and,  after  debate, 
the  resolutions  were  adopted. 

"  Wednesday  afternoon,  June  7lh,—0n  motion  of  Mr.  Breckinridge,  the  Assembly 
took  up  the  unfinished  business  of  yesterday,  viz:  the  motion  to  amend  the  resolutions 
respecting  the  connexion  of  the  Third  PresbyLery  of  Philadelphia,  and  the  Presbytery 
of  Wilmington,  with  the  Presbyterian  Church.     And, 

"On  motion  of  Mr.  Breckinrids^e,  the  resolutions  were  amended,  by  striking  out 
every  thing  relating  to  the  Presbytery  of  Wilmington. 

"The  motion  offered  yesterday,  by  Mr.  Lowrie,  to  amend  the  resolutions, by  striking 
out  all  after  the  word  '  received,'  in  the  4th  resolution,  and  the  whole  of  the  5th  resolu- 
tion, was  then  renewed,  and  adopted. 

"  And,  after  debate, 

"  It  was  moved  to  lay  this  whole  subject  on  the  table.  The  motion  was  decided  in 
the  negative,  by  yeas  and  nays,  as  follows,  viz :" 

Then  follow  ?/ea,s,  59  ;  nays,l\.     ISi on  liquet,  3. 

"  So  the  house  refused  to  lay  the  resolutions  on  the  table.    • 

"  The  previous  question  was  then  demanded,  and,  having  been  decided  in  the  af- 
firmative, 

"  The  resolutions,  as  amended,  were  agreed  to,  by  yeas  and  nays,  as  follows,  viz : 

"  Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,  1.  That  the  Third  Presbytery  of  Philadelphia  be,  and  hereby  is, 
dissolved. 

"  2.  The  territory  embraced  in  this  Presbytery  is  re-annexed  to  those  to  which  it 
respectively  appertained  before  its  creation.  Its  Stated  Clerk  is  directed  to  deposite 
all  records  and  other  papers  in  the  hands  of  the  Stated  Clerk  of  the  Synod  of  Phila- 
delphia, on,  or  before,  the  first  day  of  the  sessions  of  that  Synod,  at  its  first  meeting 
after  this  Assembly  adjourns. 

"  3.  The  candidates  and  foreign  missionaries  of  the  Third  Presbytery  of  Philadel- 
phia are  hereby  attached  to  the  Presbytery  of  Philadelphia. 

"4.  The  ministers,  churches,  and  licentiates,  in  the  Presbytery  hereby  dissolved, 
are  directed  to  apply,  without  delay,  to  the  Presbyteries  to  which  they  most  naturally 
belong,  for  admission  into  them ;  and,  upon  application  being  so  made  by  any  duly  or- 
ganized Presbyterian  Church,  it  shall  be  received. 

"  5.  These  resolutions  shall  be  in  force  from  and  after  the  final  adjournment  of  the 
present  sessions  of  the  General  Assembly." 

Here  follow  yeas,  75  ;  nays,  60. 

[During  and  after  these  proceedings,  the  minutes  of  1837,  exhibit  vari- 
ous protests  against  the  measures  of  excision,  as  they  are  termed,  each 
followed  by  an  answer,  prepared  by  a  committee  appointed  for  the  pur- 
pose. These  papers  were  offered  as  testimony,  and  part  of  them  having 
been  read,  it  was  agreed  that,  to  avoid  unnecessary  delay,  the  whole  of 
the  Minutes  of  1837  should  be  considered  as  in  evidence,  without  further 
reading,  and  open  to  each  party  for  purposes  of  argument.  They  are  too 
voluminous  to  be  given  here,  but  the  parts  of  them  particularly  relied  or 
commented  on  by  the  counsel  for  either  party,  will  appear  in  the  argu- 
ment.] 

Next  was  offered  the  "Plan  of  Union."  {Ass.  Dig. p.  297.  Min. 
1801,/?.  6.) 

"  Sec.  5. — A  plan  of  union  between  Presbyterians  and  Congregationalists  in  the 
new  settlements,  adopted  in  1801. 

"The  report  of  the  committee  appointed  to  consider  and  digest  a  plan  of  government 
for  the  churches  in  the  new  settlements,  was  taken  up  and  considered ;  and  after  mature 
deliberation  on  the  same,  approved,  as  follows: 

"  Regulations  adopted  by  the  General  Assembly  of  the  Presbyterian  Church  in  Ame- 


TESTIMONY  FOR  THE  RELATORS.  49 

rica,  and  by  the  General  Association  of  the  State  of  Connecticut,  (provided  said  Asso- 
ciation agree  to  them,)  with  a  view  to  prevent  alienation  and  promote  union  and  iiar- 
mony,  in  those  new  settlements  which  are  composed  of  inhabitants  from  these  bodies. 

"  1st.  It  is  strictly  enjoined  on  ail  their  missionaries  to  the  new  settlements,  to  endea- 
vour, by  ail  proper  means,  to  promote  mutual  forbearance  and  accommodation,  between 
those  inhabitants  of  the  new  settlements  who  hold  the  Presbyterian,  and  those  who 
hold  the  Congregational  form  of  church  government. 

"2d.  If  in  the  new  settlements,  any  church  of  the  Congregational  order  shall  settle  a 
minister  of  the  Presbyterian  order,  that  church  may,  if  they  choose,  still  conduct  their 
discipline  according  to  Congregational  principles,  settling  their  difficulties  among  them- 
selves, or  by  a  council  mutually  agreed  upon  for  that  purpose:  But  if  any  difficulty  shall 
exist  between  the  minister  and  the  church  or  any  member  of  it,  it  shall  be  referred  to 
the  Presbytery  to  which  the  minister  shall  belong,  provided  both  parties  agree  to  it;  if 
not,  to  a  council  consisting  of  an  equal  number  of  Presbyterians  and  Congregationalists, 
ag/eed  upon  by  both  parties. 

"3d.  If  a  Presbyterian  Church  shall  settle  a  minister  of  Congregational  principles, 
that  church  may  still  conduct  their  discipline  according  to  Presbyterian  principles; 
excepting  that  if  a  difficulty  arise  between  him  and  his  church,  or  any  member  of  it,  the 
cause  shall  be  tried  by  the  Association,  to  which  the  said  minister  shall  belong,  provided 
both  parties  agree  to  it;  otherwise  by  a  council,  one  half  Congregationalists  and  the 
other  half  Presbyterians,  mutually  agreed  on  by  the  parties. 

"  4th.  If  any  congregation  consists  partly  of  those  who  hold  the  congregational  form 
of  discipline,  and  partly  of  those  who  hold  the  Presbyterian  form ;  we  recommend  to 
both  parties,  that  this  be  no  obstruction  to  their  uniting  in  one  church  and  settling  a 
minister:  and  that  in  this  case,  the  church  choose  a  standing  committee  from  the  com- 
municants of  said  church,  whose  business  it  shall  be,  to  call  to  account  every  member 
of  the  church,  who  shall  conduct  himself  inconsistently  with  the  laws  of  Christianity, 
and  to  give  judgment  on  such  conduct;  and  if  the  person  condemned  by  their  judgment, 
be  a  Presbyterian,  he  shall  have  liberty  to  appeal  to  the  Presbytery ;  if  a  Congrega- 
tionalist,  he  shall  have  liberty  to  appeal  to  the  body  of  the  male  communicants  of  the 
church :  in  the  former  case  the  determination  of  the  Presbytery  shall  be  final,  unless  the 
church  consent  to  a  further  appeal  to  the  Synod,  or  to  the  General  Assembly ;  and  in  the 
latter  case,  if  the  party  condemned  shall  wish  for  a  trial  by  a  mutual  council,  the  cause 
shall  be  referred  to  such  council.  And  provided  the  said  standing  committee  of  any 
church,  shall  depute  one  of  themselves  to  attend  the  Presbytery,  he  may  have  the  same 
right  to  sit  and  act  in  the  Presbytery,  as  a  ruling  elder  of  the  Presbyterian  church. 

"■On  motion,  Resolved,  That  an  attested  copy  of  the  above  plan  be  made  by  the  Stated 
Clerk,  and  put  into  the  hands  of  the  delegates  of  this  Assembly  to  the  General  Associa- 
tion, to  be  by  them  laid  before  that  body  for  their  consideration  ;  and  that  if  it  Bhoul(J  be 
approved  by  them,  it  go  into  immediate  operation." — Vol.  I.  p.  261,  262. 

"  Sec.  7. — An  order  for  printing  the  plan  in  1806. 

"  Resolved,  That  the  Committee  of  Missions,  cause  a  number  of  copies  of  this  plan 
to  be  printed,  and  delivered  to  the  Missionaries  who  may  be  sent  by  the  Assembly 
among  the  people  concerned." — Vol.  II.  p.  192. 

Mr.  Bandall  next  offered  in  evidence,  "  The  Plan  of  Union  and  Cor- 
respondence with  the  Convention  of  Vermont,  proposed  by  the  Assem- 
bly, in  1803,  and  ratified  by  the  convention."     {Sss.  Dig. p.  300.) 

A  proposal  from  the  General  Association  of  New  Hampshire,  for  a 
plan  of  union  between  it  and  the  General  Assembly,  accepted  in  1810. 
{Jiss.  Dig.  p.  303.) 

A  Proposal  of  the  same  kind  from  the  General  Association  of  Massa- 
chusetts, accepted  in  1811.     {Ass.  Dig.  p.  305.) 

"  The  Plan  of  Correspondence  with  the  Presbytery  of  Albany,  and  the 
Northern  Associate  Presbytery,  approved  by  the  Assembly  in  1802."' 
{Ass.  Dig.  p.  309.) 

And  the  Plans  of  Correspondence  between  the  Reformed  Dutch  Church 
and  the  Associate  Reformed  Church,  and  the  General  Assembly,  proposed 
in  1798,  and  1819.     {As£.  Dig.  p.  311.) 

7 


50  PRESBYTERIAN  CHURCH  CASE. 

[These  various  plans  we  do  not  here  insert.  It  will  be  sufficient  to 
say  merely  that  the  leading  feature  of  those  entered  into  with  the  Con- 
gregational Associations  of  Vermont,  New  Hampshire,  and  Massachu- 
setts, is  the  mutual  appointment  of  delegates,  to  sit  in  the  respective 
bodies,  with  power  to  take  a  part  in  the  proceedings  thereof.  The  other 
plans  propose  the  communion  of  particular  churches  ;  the  friendly  inter- 
change of  ministerial  services  ;  and  a  correspondence  between  Church 
judicatories,  by  mutual  delegation.] 

Mr.  Randall.  I  shall  now  proceed  to  examine  the  Rev.  Dr.  William 
Patton,  of  New  York.  This  is  going  out  of  the  regular  order  of  testi- 
mony; but  Dr.  Patton  is  obliged  to  leave  the  city,  and  therefore  requests 
to  be  examined  now. 

[Before  proceeding  to  the  evidence  of  Dr.  Patton,  it  will  be  well  to  give 
the  reader  some  idea  of  the  localities  to  which  that  evidence  will  introduce 
him.  The  Seventh  Presbyterian  Church  in  the  city  of  Philadelphia — 
the  Tabernacle,  as  it  is  usually  called — is  situated  in  the  interior  of  a 
closely  built  square,  and  is  approached  by  an  alley  named  Ranstead  Court, 
which,  running  west  from  Fourth  Street,  terminates  at  a  gate  in  the  south- 
east corner  of  the  church  yard.  The  house  stands  north  and  south;  and 
at  these  two  ends  is  directly  abutted  by  adjoining  structures,  so  that  there 
is  no  communication  between  a  narrow  strip  of  pavement,  which  skirts 
the  eastern  side  of  the  building,  forming  a  right  angle  with  Ranstead 
Court,  and  a  larger  piece  of  ground  on  the  western  side,  which  is  used  as 
a  grave-yard,  but  through  the  building  itself,  at  each  end  of  which  is  a 
small  vestibule,  separated  by  partition  from  the  body  of  the  house,  being 
little  more  than  a  passage  from  this  grave-yard  to  the  eastern  pavement. 
From  the  northern  vestibule  three  large  doors  open  into  the  church,  upon 
as  many  aisles  running  north  and  south,  and  extending  its  whole  length. 
There  are  two  double  blocks  of  pews  between  the  middle  and  side  aisles, 
and  east  and  west  of  the  latter,  are  ranges  of  single  pews  along  the  wall. 
From  the  southern  vestibule,  or  session-room,  two  small  doors  open  into 
the  church,  one  on  each  side  of  the  pulpit,  between  which  and  the  front 
of  the  pews,  is  an  open  space,  or  area,  in  which,  during  the  meetings  of 
the  Assembly,  many  of  the  members  usually  sit.  There  are  also  two 
doors  into  the  church,  one  on  the  east,  and  the  other  on  the  west  side,  so 
situated  that  a  straight  line  drawn  between  them  would  fall  about  fifteen 
feet  in  front  of  the  pulpit,  and  the  short  passages  from  these  doors  open 
into  the  side  aisles  before  mentioned.  The  galleries  of  the  church,  to 
which  one  stair-case  opening  on  the  outside,  near  the  east  door  of  the 
northern  vestibule,  and  another  from  the  vestibule  itself,  ascend,  and  which 
may  also  be  entered  at  the  other  end  of  the  church,  by  the  pulpit  stairs, 
extend  round  the  whole  building;  but  the  portions  of  them  adjoining  the 
pulpit,  being  separated  from  the  rest  by  partition,  are  usually  unoccu- 
pied during  the  session  of  the  Assembly.  In  the  north  end  of  the  gallery 
is  an  organ.] 

Dr.  William  Patton,  sworn.  I  was  a  commissioner  from  the  Third 
Presbytery  of  New  York,  to  the  General  Assembly  of  1838.  I  attended 
in  the  church  in  Ranstead  Court,  on  the  third  Thursday  of  May,  at  the 
hour  designated  for  the  opening  of  the  Assembly.  Immediately  after  the 
introductory  exercises  and  sermon,  by  the  previous  Moderator,  Dr.  El- 
liott, he  gave  notice  that  after  the  prayer  which  he  would  offer,  the  Gen- 


TESTIMONY  FOR  THE  RELATORS.  5J[ 

€ral  Assembly  would  be  constituted.  Immediately  on  the  closing  of  that 
prayer,  I  rose  and  addressed  the  Moderator,  calling  him  by  his  official 
title,  and  stated  to  him  that  I  wished  to  offer  certain  resolutions,  a  copy  of 
which  resolutions  I  hold  in  my  hand.  The  copy  in  the  printed  minutes 
is  a  correct  one.  I  rose  asking  permission  to  read  them.  The  Moderator 
declared  them  out  of  order,  as  the  first  business  was  the  formation  of  the 
roll.  I  stated  to  the  Moderator  that  the  resolutions  had  reference  to  that 
very  business,  that  I  was  desirous  to  present  them,  and  would  do  so  with- 
out comment  or  remark.  The  Moderator  declaring  me  out  of  order,  I 
took  an  appeal  from  his  ^decision.  The  Moderator  declared  that  appeal 
to  be  out  of  order.     I  then  took  my  seat. 

Mr.  Randall.  Please  to  read  the  resolutions  contained  in  the  paper 
which  you  hold  in  your  hand. 

Mr.  Hubbell.  I  object  to  the  reading  of  them.  May  it  please  your 
Honour,  this  paper  was  not  read  to  the  Assembly,  and  therefore,  though 
the  fact  of  its  having  been  offered  is  a  part  of  the  res  gestae,  the  contents 
of  it  are  not.  We  did  not  know,  at  that  time,  what  were  the  contents  of 
the  paper,  and  non  constat,  but  that  if  we  had  known  we  should  have 
acted  differently.  If  at  any  subsequent  stage  of  the  proceedings,  it  was 
read  to  us,  then  when  we  come  to  the  witness's  testimony  in  regard  to 
that  fact,  perhaps  there  will  be  no  objection  to  the  contents  being  made 
known  to  the  court  and  jury. 

Judge  Rogers  overruled  the  objection,  and  allowed  the  paper  to  be 
read,  which  was  accordingly  done  by  Dr.  Patton,  as  follows: 

"  Whereas  the  General  Assembly  of  1837  adopted  certain  resolutions  intended  to  de- 
prive certain  Presbyteries  of  the  right  to  be  represented  in  the  General  Assembly ; — 
and  whereas,  the  more  fully  to  accomplish  their  purpose,  the  said  Assembly  of  1837  did 
require  and  receive  from  their  clerks  a  pledge  or  promise,  that  they  would,  in  making 
out  the  Roll  of  Commissioners  to  constitute  the  General  Assembly  of  1838,  omit  to  in- 
sert therein  the  names  of  Commissioners  from  said  Presbyteries ; — and  whereas  the 
said  Clerks,  having  been  requested  by  Commissioners  from  the  said  Presbyteries  to  re- 
ceive their  Commissions  and  enter  their  names  on  the  Roll  of  the  General  Assembly  of 
1838,  now  about  to  be  organized,  have  refused  to  receive  and  enter  the  same  ;— There- 
fore, 

"  1.  Resolved,  That  such  attempts  on  the  part  of  the  General  Assembly  of  1837  and 
their  Clerks,  to  direct  and  control  the  organization  of  the  General  Assembly  of  1838, 
are  unconstitutional,  and  in  derogation  of  its  just  rights  as  the  general  representative 
judicatory  of  the  whole  Presbyterian  Church  in  the  United  States  of  America. 

"2.  Resolved,  That  the  General  Assembly  cannot  be  legally  constituted  except  by 
admitting  to  seats  and  to  equality  of  powers,  in  the  first  instance,  all  Commissioners, 
who  present  the  usual  evidences  of  their  appointment;  and  that  it  is  the  duty  of  the 
Clerks,  and  they  are  hereby  directed,  to  form  the  Roll  of  the  General  Assembly  of  1838, 
by  including  therein  the  names  of  all  Commissioners  from  Presbyteries  belonging  to 
the  said  Presbyterian  Church,  not  omitting  the  Commissioners  from  the  several  Pres- 
byteries within  the  bounds  of  the  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western 
Reserve;  and  in  all  things  to  form  the  said  Roll  according  to  the  known  practice  and 
established  usage  of  previous  General  Assemblies." 

After  the  reading  of  the  paper  had  commenced  Mr.  Hubbell  objected 
that  it  was  not  an  original. 

Dr.  Patton  testified  that  the  original  had  been  given  to  Dr.  Erskine 
Mason,  and  the  opposite  counsel  offering  to  call  Dr.  Mason  to  account 
for  it,  the  objection  was  waved. 

Dr.  Patton.  These  are  the  resolutions  which  I  offered  at  the  time. 
My  appeal  was  seconded.     The  Moderator  declared  the  appeal  out  of 


52  PRESBYTERIAN  CHURCH  CASE. 

order,  and  directed  the  clerks  to  proceed  with  the  reporting  of  the  rolL 
Thereupon  Mr.  Krebs,  the  Permanent  Clerk,  rose  and  proceeded,  omit- 
ting the  names  of  Commissioners  from  the  exscinded  Synods.  At  the 
close  of  that  report  the  Moderator  announced  that  if  there  were  any  com- 
missioners whose  names  had  not  been  reported,  then  was  the  time  for  them 
to  present  their  commissions.  Immediately  the  Rev.  Dr.  Mason,  a  com- 
missioner also  from  the  Third  Presbytery  of  New  York,  rose,  and  first 
stating  the  fact,  that  the  names  of  the  commissioners  from  within  the 
bounds  of  the  exscinded  Synods  had  not  been  entered  on  the  roll,  then 
moved,  that  their  names  should  be  added  to  it,  at  the  same  time  holding 
foi'th  as  a  tender  the  commissions,  saying  here  they  were,  and  stating  that 
they  had  been  rejected  by  the  clerks.  The  Moderator  declared  that  mo- 
tion to  be  out  of  order.  Dr.  Mason  then  said,  that,  with  great  respect  for 
the  chair,  he  must  appeal  from  his  decision.  This  appeal  was  seconded. 
The  Moderator  refused  to  put  the  appeal,  declaring  it  to  be  out  of  order. 
Dr.  Mason  then  took  his  seat.  There  was  an  inquiry  made  by  the  Mode- 
rator, from  what  Presbytery  these  commissions  came.  Dr.  Mason  re- 
plied that  they  came  from  the  Synods  named  in  his  resolution — Utica, 
Geneva,  Genesee,  and  Western  Reserve.  After  Dr.  Mason  had  answered 
where  they  came  from,  the  Moderator  declared  they  were  out  of  order. 
I  do  not  remember  that  any  thing  more  was  said  at  that  time. 

Immediately  after  Dr.  Mason  took  his  seat,  the  Rev.  Miles  P.  Squier, 
from  the  Presbytery  of  Geneva,  rose,  and  said  that  he  had  presented  his 
commission  to  the  clerks,  and  they  had  refused  to  receive  it,  and  that  he 
now  rose  to  claim  his  seat  upon  that  floor,  or  words  to  that  effect.  The 
Moderator  asked  him  from  what  Presbytery  he  came.  He  said  from  the 
Presbytery  of  Geneva.  The  Moderator  then  asked  him  if  that  Presbytery 
was  within  the  bounds  of  the  Synod  of  Geneva.  Mr.  Squier  answered 
that  it  was.  The  Moderator  then  said,  "  We  do  not  know  you,"  where- 
upon Mr.  Squier  took  his  seat.  Immediately  after  that,  the  Rev.  John  P. 
Cleaveland,  a  commissioner  from  the  Presbytery  of  Detroit,  rose,  and, 
after  a  few  introductory  remarks,  moved  that  the  Rev.  Dr.  N.  S.  S.  Beman, 
of  the  Presbytery  of  Troy,  be  Moderator.  That  motion  was  seconded 
and  put  by  Mr.  Cleveland,  and  was  carried  by  a  large  majority,  very  few 
voting  in  the  negative.  Dr.  Beman  then  called  the  attention  of  the  house 
to  business,  and  Dr.  Mason  and  Mr.  E.  W.  Gilbert,  were  nominated  as 
Clerks,  and  were  elected.  No  other  nomination  for  clerks  was  made.  Dr. 
Beman  stated  that  the  next  business  would  be  the  election  of  the  Modera- 
tor, and  the  Rev.  Samuel  Fisher,  D.  D.  of  the  Presbytery  of  Newark  was 
nominated,  and  no  other  person  was  put  in  nomination  but  Dr.  Fisher. 
The  vote  was  then  taken  and  Dr.  Fisher  was  declared  to  be  duly  elected. 
My  own  recollection  is  that  the  vote  was  unanimous;  there  were  no  nega- 
tives. It  was  taken  viva  voce.  Dr.  Beman  then  addressed  Dr.  Fisher, 
stating  to  him  that  he  was  duly  elected  Moderator  of  the  General  Assem- 
bly, and  that  he  should  govern  himself  by  the  rules  that  should  be  adopted 
by  the  house.  It  is  usual  for  the  General  Assembly  to  adopt  rules  for  its 
own  government.  Dr.  Fisher  then  took  the  place  occupied  by  Dr.  Beman, 
and  called  for  business,  when  Dr.  Mason  and  Mr.  Gilbert  were  chosen 
clerks.  No  others  were  nominated.  They  were  nominated  together, 
and  voted  for  together.  A  motion  was  then  made  to  adjourn  to  meet  in 
the  lecture-room   of  llie  First  Presbyterian  Ciuircli.     It  was  put  and  car- 


TESTIMONY  FOR  THE  RELATORS.  53 

ried  unanimously;  that  is,  there  were  no  votes  in  the  negative.  It  was 
put  viva  voce,  as  all  the  motions  were  put.  Dr.  Fisher  then  announced, 
that  the  Assembly  had  adjourned  to  meet  forthwith  in  the  lecture-room 
of  the  First  Presbyterian  Church,  and  that  if  any  commissioners  had  not 
handed  in  their  commissions  to  the  clerks,  they  should  do  so  immediately 
at  that  place.  We  went  to  the  First  Presbyterian  Church,  arid  attended  to 
the  business  of  the  Assembly  in  a  very  affectionate  and  brotherly  manner. 
Immediately  on  our  assembling  at  the  First  Church,  I  renewed  my  offer  of 
the  resolutions  before  offered,  and  they  were  unanimously  adopted  by  the 
Assembly,  as  containing  their  views.  A  Committee  of  Commissions 
was  then  appointed,  to  whom  informal  commissions  were  referred,  and 
several  commissions  were  presented  and  received,  after  the  adjourment  to 
the  First  Church. 
Court  adjourned. 

THURSDAY  MORNING,  March  7th— 10  o'clock. 
Dr.  Paiton,  (in  coniimtation.)  The  motions  for  the  Moderator 
were  made  and  put  in  an  audible  voice,  to  be  heard  throughout  the  house. 
Dr.  Elliott  occupied  a  chair  immediately  in  front  of  the  pulpit,  and  Dr. 
Beman,  when  he  officiated  as  temporary  Moderator,  took  his  place  in  the 
middle  aisle,  about  one  third  or  one  half  of  the  way  down  the  aisle,  north 
of  the  pulpit.  There  were  some  voices  in  the  negative,  on  some  of  the 
motions.  These  negatives,  as  nearly  as  I  could  judge  from  the  sound, 
came  from  the  south-west  portion  of  the  church.  That  was  the  part  of  the 
house  where  the  Old-school  sat:  they  occupied  that  portion,  and  also  a 
portion  on  the  left  and  front  of  the  pulpit — that  is  the  south-east  part  of 
the  house.  During  the  time  that  I  occupied  the  floor,  in  endeavouring  to 
get  the  reading  of  the  resolutions  I  wished  to  offer,  there  were  frequent 
cries  of  "Order!  Order!"  proceeding  from  gentlemen  in  the  general 
neighborhood  of  the  Moderator.  When  Dr.  Mason  was  on  the  floor, 
similar  cries  of  "Order  !"  were  repeated,  from  the  same  quarter  of  the 
house,  and  were  more  continued  than  when  I  was  on  the  floor.  Shortly 
after  Mr.  Cleaveland  rose,  the  calls  to  order  were  much  more  vociferous, 
and  were  accompanied  with  frequent  coughing,  scraping  of  the  feet  on  the 
floor,  and  some  very  emphatic  hisses,  also  proceeding  from  the  same 
quarter  of  the  house,  with  the  obvious  intention,  as  appeared  to  me,  of 
preventing  the  progress  of  business.  After  the  notice  of  adjournment 
was  given  by  Dr.  Fisher,  there  was  considerable  noise  in  the  galleries  of 
the  church.  This  noise  consisted  of  clapping,  expressive  of  approbation, 
intermingled  with  some  hisses,  making  the  light  and  shadow  of  the  pic- 
ture. These  are  the  material  points,  in  regard  to  which  my  memory 
serves  me.  Spectators  only,  I  presume  were  in  the  gallery.  There  were 
no  members  there  to  my  knowledge.  It  is  not  usual  for  members  to  sit 
in  the  galleries.  A  mixed  company  of  ladies  and  gentlemen  was  there. 
I  think  ample  opportunity  was  given  to  every  commissioner  to  vote  upon 
the  motions  put  by  the  Moderator.  After  our  adjournment  from  the 
church  in  Ranstead  Court,  the  body  in  the  First  Presbyterian  Church, 
was  in  session  about  two  weeks.  Every  day  the  full  roll  of  all  who  had 
reported  commissions,  at  any  stage  of  the  organization,  was  called.  The 
roll  embraced  all  the  commissioners,  as  well  those  whose  seats  had,  as 
those  whose  seats  had  rrot  been  disputed.  That  body  went  into  the  elec- 
tion of  new  trustees. 


54  PRESBYTERIAN  CHURCH  CASE. 

On  suggestion  of  Mr.  Hubhell,  the  election  of  such  trustees  being  a 
recorded  proceeding,  the  examination  on  this  subject  was  waved. 

Cross-examined  by  Mr.  Hubbell.  I  cannot  say  with  absolute  cer- 
tainty who  seconded  Dr.  Mason's  motion.  My  own  impression  is  that  it 
was  Dr.  Dickinson,  Professor  in  Lane  Seminary.  I  gather  this  from 
general  familiarity  with  the  tones  of  his  voice,  and  from  his  sitting  in  that 
part  of  the  house.  I  myself  seconded  Dr.  Mason's  appeal.  Our  roll  was 
called  very  soon  after  we  retired  to  the  First  Presbyterian  Church.  We 
called  it  for  the  purpose  of  having  it  complete.  I  cannot  answer  with  ac- 
curacy how  many  responded  to  that  call,  as  I  kept  no  account  at  the  time. 
I  should  say  rising  one  hundred;  or  say  in  the  general  neighborhood  of  a 
hundred  and  seventeen,  or  from  that  to  a  hundred  and  twenty.  This 
number  included  those  whose  right  was  disputed.  The  exscinded  I  un- 
derstand by  the  disputed.  This  was  the  first  time  of  the  calling  of  the 
roll  after  Mr.  Cleaveland's  motion.  We  do  not  recognise  that  there  was 
any  new  organization. 

I  was  sitting  in  the  same  pew  with  Mr.  Cleaveland  when  he  made  his 
motion.  His  face  was  turned  toward  Dr.  Elliott,  when  he  made  the 
remarks  preliminary  to  his  motion,  and  in  the  same  direction  when  he 
made  the  motion.  When  he  put  the  question,  his  face  was  turned  the 
same  way.  He  did  not,  at  any  time  during  his  remarks  or  his  motion, 
turn  either  his  back  or  side  toward  the  Moderator.  I  have  no  recollec- 
tion that  there  was  any  gathering  or  crowding* of  persons  round  him, 
during  either  his  remarks,  or  the  making  of  his  motion.  He  did  not  call 
the  Moderator  by  name,  but  looking  toward  him,  addressed  his  remarks 
and  put  his  motion  to  the  house,  a  large  portion  of  which  was  between 
himself  and  the  Moderator.  These  remarks  stated,  that  a  number  of  the 
Commissioners  to  the  Assembly  of  1S38  had  been  refused  their  seats,  and 
that  learned  counsel  had  informed  us,  that  the  constitutional  organization 
of  the  General  Assembly  of  183S  could  not  be  effected,  or  secured,  except 
at  that  time  and  place.  He  then  made  a  remark  something  of  this  kind, 
that  in  view  of  this  position,  he  hoped  it  would  not  be  considered  discour- 
teous, to  proceed  with  the  organization  of  the  Assembly,  and  offered  his 
resolution,  and  put  it  to  the  house,  as  has  been  already  detailed.  Dr. 
Beman,  when  called  to  the  chair,  took  a  place  in  the  middle  aisle,  not  far 
from  Mr.  Cleaveland.  My  impression  is  that  he  had  been  before  seated 
in  the  same  pew  with  Mr.  Cleaveland,  or  in  a  contiguous  one.  He  had 
no  chair  in  the  aisle — he  stood  up.  Dr.  Fisher,  when  chosen  Modera- 
tor, took  the  same  place,  and  also  stood  up.  Drs.  Beman  and  Fisher, 
when  they  occupied  this  place,  both  looked  toward  the  pulpit.  I  should 
think  it  probable  there  were  other  persons,  besides  members,  on  the  floor, 
for  the  church  was  well  filled.  No  measures  were  taken  to  prevent  these 
from  voting,  or  to  ascertain  that  they  did  not  vote:  nothing  of  this  kind 
was  suspected.  While  Dr.  Beman  and  Dr.  Fisher  held  the  place  men- 
tioned. Dr.  Elliott  remained  in  the  chair  where  he  had  been  before,  now 
shorn  of  his  office. 

Mr.  Hubbell.  Did  Dr.  Elliott  admit  that  he  had  been  shorn  of  his 
office. 

Dr.  Patton.  I  presume  not.  I  believe  he  continued  to  sit  where  he 
had  before,  until  we  had  adjourned  to  the  First  Presbyterian  Church.  Dr. 
Elliott  called  me  to  order  as  already  stated.     He  also  called  Dr.  Mason 


TESTIMONY  FOR  THE  RELATORS.  55 

to  order,  and  Mr.  Cleaveland,  frequently  using  the  little  hammer  that  is 
put  into  the  moderator's  hand.  I  do  not  know  that  this  hammer  is  a  badge 
of  office;  it  is  not  always  used.  In  some  Assemblies  where  I  have  been, 
the  Moderator  has  used  his  cane — I  do  not  mean  to  strike  the  members. 
I  do  not  know  to  whom  this  hammer  belongs,  unless  it  is  the  property  of 
the  General  Assembly.  Dr.  Beman  had  no  hammer,  nor  did  he  use  a 
cane.  I  did  not  hear  Dr.  Beman  call  Dr.  Elliott  to  order.  Dr.  Elliott 
had  ceased  calling  to  order,  and  had  ceased  rapping  with  the  mallet,  before 
Dr.  Beman's  election.  That  part  of  the  Assembly,  called  the  Old-school 
party,  I  am  not  able  to  say,  took  any  part  in  the  proceedings  after  Dr. 
Beman  took  the  chair,  except  by  their  silence.  The  cries  of  order,  and 
the  coughing  and  hissing  ceased  after  Mr.  Cleaveland  had  got  through 
with  his  preliminary  remarks. 

Mr.  Hubbell.  What  part  of  the  house  was  occupied  by  the  New-school 
members  ? 

Dr.  Patton.  The  house  had  been  occupied  nearly  to  the  hour  of  reli- 
gious service,  by  a  convention  of  what  are  termed  Old-school  men,  sitting 
with  closed  doors,  and  admitting  no  body  to  their  counsels,  but  those  who 
would  sustain  their  proceedings. 

Mr.  Hubbell  interrupted  the  witness,  and  objected  to  his  speaking  of 
matters  of  which  he  could  not  possibly  have  any  direct  knowledge. 

Mr.  Randall.  The  witness  is  at  liberty  to  say  whether  this  fact  came 
within  "his  own  knowledge  or  not. 

Mr.  Hubbdl  repeated  his  question. 

Dr.  Patton.  The  New-school  party  were  located  on  such  seats  as  they 
found  vacant  when  they  entered,  which  were  at  a  considerable  distance 
from  the  pulpit.  A  portion  of  them  were  around  and  behind  Mr.  Cleave- 
land, in  the  north  part  of  the  church,  and  in  that  general  neighbourhood. 
I  did  know,  at  the  time  accurately,  how  many  persons  the  entire  roll 
called  after  the  adjournment  contained.  I  cannot  state  now  exactly. 
There  were  not,  that  I  know  of,  two  persons'  names  on  that  roll,  who  did 
not  arrive  in  the  city  until  after  our  adjournment.  Neither  Dr.  Beman 
nor  Dr.  Fisher  demanded  possession  of  the  chair,  or  of  the  hammer, 
from  Dr.  Elliott.  I  have  seen  the  depositions  of  Dr.  Beman  and  Mr. 
Cleaveland,  since  this  visit  to  the  city.  I  have  read  them — this  I  mean 
by  saying  I  have  seen  them.  Our  proceedings  were  the  result  of  a  con- 
certed plan,  and  not  the  suggestion  of  the  moment.  There  was  previous 
consultation  as  to  the  manner  in  which  an  ex  parte  organization  of  the 
Assembly  might  be  prevented,  and  a  constitutional  one  secured.  This 
arrangement  was  not  made  in  consequence  of  our  knowing  that  we  should 
be  in  a  minority  in  that  Assembly,  nor  from  an  apprehension  that  we 
would  be.  It  was  to  maintain  the  Constitution  inviolate.  We  had  no 
knowledge  whether  we  should  be  in  the  minority  or  majority,  and  could 
have  had  none  until  all  the  commissions  were  received.  I  think  there 
was  a  small  majority  on  what  was  called  the  Old-school  side;  but  this  we 
knew  as  matter  of  history,  and  not  of  prophecy.  I  think  I  have  already 
answered  whether  it  might  have  been  matter  of  anticipation.  The 
meeting  of  consultation,  to  arrange  this  proceeding,  was  held  in  the  lecture 
room  of  the  First  Presbyterian  Church.  It  commenced  its  session  on  the 
Monday  evening  preceding  the  meeting  of  the  Assembl}^,  on  an  invitation 
to  all  the  commissioneBS  to  attend  a  meeting  for  consultation.     I  do  not 


56  PRESBYTERIAN  CHURCH  CASE. 

know  how  many  attended.  The  clerks  of  the  meeting  are  present  and 
can  say  how  many.  The  invitation  was  given  through  the  pubHe  news- 
papers.    I  have  a  copy  of  it  here,  as  it  was  published. 

Dr.  Patton  produced  a  printed  paper,  in  the  form  of  a  circular,  from 
which  he  read  the  following. 

"  Important  Document. — We  request  the  attention  of  Ministers  and  Elders,  to  the  fol- 
lowing notice: 

"  Commissioners  to  the  General  Assembly  o/1838. — A  Meeting  for  Consultation. 

"  Whereas,  the  state  of  the  Presbyterian  body  at  present  is  such  as  to  demand  the 
consultations  and  prayers  of  all  its  Ministers  and  ChurChes,  in  order  to  preserve  its  unity 
and  peace ;  and  whereas  the  measures  adopted  at  the  last  Assembly,  excluding  certain 
Synods  and  the  Third  Presbytery  of  Philadelphia,  and  providing  for  the  organization 
of  the  Assembly  of  1838,  give  reason  to  apprehend  unhappy  collisions  at  the  opening  of 
that  Assembly,  as  well  as  subsequently;  and  whereas  all  party  conventions  in  the 
Church,  except  for  the  defence  of  rights  which  have  been  assailed,  are  greatly  to  be 
deprecated,  it  is  therefore  proposed  and  recommended,  that  all  the  delegates  to  the 
Assembly  of  1838,  meet  at  8  o'clock,  on  the  evening  of  Monday  the  14th  of  May,  in  the 
First  Presbyterian  Church  of  Philadelphia,  for  the  purpose  of  interchanging  views,  and  of 
devising  such  measures  as  the  present  exigencies  of  the  Church  may  require, 

"Rev.  Thomas  McAuley,  D.  D.,  James  Richards,  D.  D.,  Luther  Halsev,  D.  D.,  Jo- 
siah  Hopkins,  E.  W.  Gilhort,  John  L.  Grant,  Lvman  Beecher,  D.  D.,  Calvin  E.  Stow, 
Thomas  J.  Biggs,  Baxter  Dickinson,  Sylvester  Eaton,  Samuel  C.  Aikin,  Samuel  Hanson 
Cox,  D.  D.,  T.  S.  Spencer,  Samuel  Fisher,  D.  D.,  N.  S.  S.  Beman,  D.  D.,  Daniel  Dana, 
D.  D.,  George  E.  Pierce,  Wm  Patton,  D.  D.,  E.Xheever,  J.  P.  Cleaveland. 

"  (fc5^  N.  B.    Editors  of  religious  papers  are  requested  to  copy  the  above." 

'  [We  give  the  notice  as  inserted  in  the  Philadelphia  Observer,  and  as 
afterwards  read  to  the  jury.  Dr.  Patton's  copy  was  without  the  names, 
and  contained  only  the  body  of  the  notice.] 

This  copy  has  no  date,  but  it  took  the  date  of  the  newspapers  in  which 
it  was  published.  It  was  signed  by  some  twenty  clergymen,  from  differ* 
ent  parts  of  the  country,  and  was  published  in  all  the  religious  newspa- 
pers we  could  get  it  into.  It  was  published  in  newspapers  in  this  State, 
in  New  York  State,  and  I  think  in  Maryland ;  and  had  as  wide  a  circu- 
lation as  could  be  given  to  it.  Some  who  remained  in  the  body  organized 
under  Dr.  Plumer,  attended  that  meeting.  Of  these,  I  recollect  the  Rev. 
Dr.  Church,  and  the  Rev.  Wm.  Bradford.  I  do  not  remember  any  others. 
I  believe  there  were  some  others,  but  I  cannot  identify  them  at  this  mo- 
ment. The  circular  was  signed  by  a  number  of  gentlemen — about  twenty 
I  think.  Dr.  Dana,  and  Dr.  Bemam  signed  it.  The  newspapers  will 
show  who  the  rest  were.  I  think  Dr.  Fisher  signed  it.  Dr.  Skinner's 
name  was  there,  and  also  the  name  of  Rev.  Luther  Halsey,  formerly  pro- 
fessor in  the  Western  or  Alleghany  Town  Seminary.  He  was  not  profes- 
sor at  that  time.  He  was  then  located  at  Auburn  in  the  State  of  New 
York.  I  do  not  recollect  that  Messrs.  Church  and  Bradford  signed  it.  I 
do  not  recollect  that  any  of  those  who  signed  this  paper  sat  in  the  Assem- 
bly under  Dr.  Plumer.  There  were  some  diversity  of  opinion  in  the  de- 
bates, as  to  the  best  mode  of  securing  the  object;  but  no  diversity  as  ta 
the  importance  of  forming  a  constitutional  Assembly.  There  was  a  reso- 
lution offered — the  minutes  will  show  precisely  what  it  is — and  there 
was  opposition  to  it,  and  considerable  debate,  which  opposition,  however, 
nearly  disappeared  before  the  end  of  the  debate.  There  were  various 
classical  figures  used,  and  among  others  it  was  said,  by  an  eloquent  gen- 
tleman present,  that  this  measure  was  passing  the  Rubicon. 


TESTIMONY  FOR  THE  RELATORS.  57 

Re-examined  by  Mr.  Randall.  Dr.  Beman,  I  presume,  is  now  in 
England.  He  left  this  country  in  the  month  of  January  ;  I  had  the  hap- 
piness of  seeing  him  safe  on  board  the  vessel  in  which  he  sailed.  Mr. 
Cleaveland  lives,  I  think,  in  Marshall,  in  Michigan.  Their  depositions 
were  handed  tome  to  be  read  by  yourself — (Mr.  Randall.)  No  such 
thing  as  a  stick  or  hammer  is  recognised  in  our  Constitution.  The  Con- 
stitution is  in  itself  strong  enough.  I  and  my  friends,  when  we  went  into 
the  house  in  Ranstead  Court  occupied  the  nearest  vacant  seats.  We 
found  those  nearest  the  pulpit  occupied  by  the  Old-school  party.  I  do 
not  know  from  personal  observation  that  there  had  been  a  private 
meeting  of  that  party  in  the  morning,  or  that  they  sat  with  closed 
doors;  but  I  have  no  moral  doubt  that  they  were  so  sitting.  I  have  been 
a  minister  of  the  Presbyterian  Church  about  sixteen  or  seventeen  years, 
and  was  forty  years  old  last  August  It  was  the  Rev.  Jared  Waterbury 
who  spoke  of  our  measures  being  the  passage  of  the  Rubicon.  He  after- 
wards acted  with  the  Constitutional  Assembly.  The  doors  of  the  First 
Presbyterian  Church  were  at  all  times  open,  and  all  the  Commissioners  to 
the  General  Assembly  had  an  opportunity  to  take  seats  there. 

Yesterday  I  said  I  had  handed  my  resolutions  to  the  Stated  Clerk,  This 
was  a  mistake:  I  handed  them  to  the  Permanent  Clerk. 

Judge  William  Jesup — sivorn.  I  was  a  commissioner  to  the  General 
Assembly  of  1837,  attended  that  body,  and  took  an  active  part  m  its  pro- 
ceedings. I  came  from  the  Presbytery  of  Montrose,  belonging  to  the 
Synod  of  New  Jersey.  So  far  as  I  know,  this  Presbytery  has  always 
been  in  that  Synod.  I  was  one  of  the  members  of  the  committee  ap- 
pointed, on  motion  of  Mr.  Breckinridge,  to  devise  measures  for  the  sep- 
aration of  the  Church.  Mr.  Breckinridge  was  also  a  member  of  that 
committee.  It  met  several  times ;  the  two  portions  of  which  it  was  com- 
posed meeting  sometimes  separately,  and  sometimes  together. 

Mr.  Randall.  Do  you  recollect  whether  any  thing  was  said  by  any 
member  of  that  committee,  at  the  time  when  it  was  about  to  separate,  in 
regard  to  the  consequence  of  the  refusal  of  the  New-school  members  to 
accede  to  the  terms  proposed? 

Mr.  Hubbell.  May  it  please  your  Honor,  we  object  to  the  question. 
The  proceedings  of  that  committee  were  reduced  to  writing  :  the  record 
has  been  produced,  and  speaks  for  itself.  The  various  and  conflicting 
propositions  made  by  the  opposite  parties  are  all  in  writing,  as  well  as  the 
action  of  the  house  thereupon.  The  conversations  of  the  different  mem- 
bers of  the  committee  converged  in  these  records,  and  were  ended  by 
them,  and,  besides,  are  entirely  foreign  to  this  controversy.  Indeed,  the 
whole  subject  is  a  foreign  one.  The  proceedings  of  the  Assembly  of 
1837  were  admitted,  so  far  merely  as  they  related  to  the  acts  of  excision; 
but  the  other  party  saw  fit  to  read  the  account  of  these  efforts  at  compro- 
mise, and  to  this  we  did  not  object.  It  was  matter  of  record,  and,  at 
most,  immaterial  and  irrelevant.  This  is  an  attempt  to  go  out  of  the 
record,  and  substitute  for  it  the  loose  and  idle  conversations  of  individuals, 
of  which  we  know  nothing.  They  were  ex-parte  conversations,  and  no 
result  followed  them.  The  parties  to  this  suit  had  nothing  to  do  with 
them.  Certain  individuals,  claiming  to  be  trustees  of  the  General  Assem- 
bly, and  asserting  the  right  to  oust  those  who  now  hold  the  office,  seek 
to  effect  their  purpose^  giving  in  evidence  conversations,  not  with  the 

8 


58  PRESBYTERIAN  CHURCH  CASE. 

trustees  themselves,  but  between  Judge  Jesup  and  Mr.  Breckinridge, 
These  can  have  no  more  bearing  on  the  case  than  any  street  conversa- 
tions. 

Mr.  Randall.  We  think  this  an  important  link  in  the  chain  of  proof, 
and  that  a  decision  adverse  to  the  admission  of  the  evidence  would  be 
unfavorable  to  the  cause  of  justice.  Your  Honor  must  connect  the  whole 
testimony — 

Judge  Rogers.  You  had  better  present  the  question  in  writing,  as  it 
is  an  important  one. 

Mr.  Randall.  I  will  put  it  in  writing,  and,  to  prevent  delay,  now 
offer  in  evidence  "  The  Philadelphia  Observer"  of  March  29th,  1838,  in 
which  the  notice  of  the  consultation  meeting,  before  mentioned  by  Dr. 
Patton,  is  to  be  found. 

[This  notice — the  same  as  given  above — was  then  read.] 

Dr.  Patton.  Some  of  the  persons  whose  names  are  appended  to  this 
notice  are  of  the  Old-school  party — for  example,  the-  Rev.  T.  S.  Spencer. 

Mr.  Hubbell  asked  for  the  piece  of  paper,  which  had  been  torn  off^ 
from  the  top  of  that  copy  of  the  notice  from  which  Dr.  Pattoii  had  first 
read. 

Mr  Randall  produced  it,  and  proposed  to  read  it  in  evidence.  It 
was,  he  said,  a  circular  intended  to  accompany  the  notice.  After  looking 
at  it,  Mr.  Hubbell  waved  his  demand,  and  the  paper  was  rejected. 

Mr.  Randall  then  -presented,  in  writing,  the  question  which  he  pro- 
posed putting  to  Judge  Jesup.  His  object  was  to  prove,  that,  in  the 
course  of  the  negociations  of  the  joint  committee  appointed  by  the  Gene- 
ral Assembly,  as  a  part  of  the  res  gestx,  Mr.  Breckinridge  declared,  that 
if  the  New-school  party  did  not  accept  the  propositions  of  the  Old-school, 
he  would,  the  next  day,  in  the  General  Assembly,  move  to  exscind  a  suffi- 
cient number  of  Synods  from  the  General  Assembly  to  secure,  thereafter, 
in  that  body,  the  predominance  of  the  Old-school ;  and  that  the  other  four 
ministers  of  this  part  of  the  joint  committee  assented  to  his  declaration. 
Copies  of  the  question  having  been  given  to  the  Court,  and  the  opposite 
counsel. 

Mr.  Randall,  in  defence  of  it  remarked.  Your  Honour  perceives  from 
a  perusal  of  that  paper,  that  it  relates  to  a  declaration  made  in  the  meeting 
of  the  committee  referred  to.  It  is  objected,  that  what  we  seek  to  prove 
is  the  mere  act  of  an  individual.  But  we  want  to  show  that  there  was  a 
total  discrepancy  between  the  course  pursued  by  the  Old-school  party, 
and  the  real  object  which  they  had  in  view.  The  ex-parte  declaration 
of  Mr.  Waterbury  was  admitted,  and  was  gone  into  at  some  length;  and 
he  was  a  gentleman  not  present  during  the  proceedings  of  the  Assembly 
of  1837,  and  no  party  to  them.  Now,  we  seek  to  show  the  acts  and  de- 
clarations of  a  gentleman  who  moved  for  the  appointment  of  this  commit- 
tee— who  was  the  mouth  piece,  and — I  say  it  without  disrespect — the 
master-spirit  of  the  Old-school.  We  wish  to  show  a  concerted  plan,  a 
conspiracy,  to  exclude  certain  Synods  from  all  future  participation  in  the 
rights  and  privileges  of  the  Presbyterian  Church.  This  is  the  leading  fea- 
ture of  the  case.  These  Synods  were  cut  off  without  trial,  or  even 
notice.  The  great  principle  that  none  shall  be  condemned  without  a 
hearing  was  violated.  I  do  not  wish  to  state  what  are  the  contents  of 
that  paper,  in  the  hearing  of  the  jury,  but  my  allusions  to  it  will  be  un- 


TESTIMONY  FOR  THE  RELATORS.  59 

derstood  by  those  who  have  it  before  them.  This  is  not  only  a  part  of 
the  res  gestse,  but  the  very  pivot — the  corner  stone  of  the  whole  investi- 
gation. On  this  declaration  depends,  for  its  character,  the  exclusion  of 
the  four  Synods.  A"  motion  was  made  to  appoint  a  committee  to  agree 
upon  terms  of  amicable  division.  That  committee  met,  as  the  agents  of 
the  General  Assembly.  They  reported,  and  their  report  was  received. 
Then  came  the  act  of  exclusion,  or,  as  one  of  the  counsel  has  said,  not 
inappropriately,  of  detrusion.  We  now  propose  to  show  that  after  this 
abortive  attempt  at  pacification,  after  the  members  of  that  committee  had 
returned  to  the  body,  a  menace  was  distinctly  offered,  and  that  the  deed 
threatened  Was  afterwards  consummated.  This  witness,  holding  in  his 
hand  the  book,  appealed  to  it,  and  asked  for  an  accusation,  and  for  trial. 
His  appeal  was  met  by  a  call  for  the  previous  question.  The  words  of 
Omniscience  to  Adam  were,  "Where  art  thou?  What  hast  thou  done?" 
Even  he  would  not  pass  sentence  upon  poor,  fallible  man,  without  a  hear- 
ing. But  these  reverend  fathers  of  the  Church,  born  and  bred  in  its  com- 
munion, have  been  detruded,  unheard.  This  is  the  very  gravamen  of 
•the  charge.  No  lawyer,  at  least,  can  misunderstand  me,  when  I  say,  that 
the  exclusion  of  these  trustees,  whom  we  claim  to  have  superseded  by  our 
appointments,  was  not  intended  to  fix  any  stain  upon  their  christian 
character.  Their  amotion  was  with  a  view  merely  to  try  the  rights  of 
the  respective  parties.  The  high  character  of  the  man  whose  name  has 
been  put  at  the  head  of  the  newly  appointed  trustees,  is  a  sufficient  guar- 
antee of  the  purity  of  our  intentions.  We  wish  only  to  try  whether 
sixty  thousand  communicants,  five  hundred  and  ninety-nine  churches, 
and  five  hundred  ministers,  can  be  detruded,  without  trial,  or  even  the 
knowledge  of  any  accusation.  This  is  the  ground  of  the  present  offer. 
I  consider  it  the  most  interesting,  and  vital  part  of  our  inquiry.  With 
these  views  I  submit  the  question,  hoping  that  your  Honour  will  allow 
all  the  facts  of  the  case  to  be  developed. 

Mr.  Wood.  The  question  is,  whether  the  evidence  offered  is  material 
to  the  issue;  but  a  court  will  not  nicely  scan  the  nature  of  such  evidence, 
and  decide  upon  it,  at  this  stage  of  the  proceedings,  but  will  rather  admit  it, 
and  leave  it  to  the  jury.  I  will  show  how  this  testimony  applies  to  the 
case.  We  proceeded  to  organize  the  General  Assembly  of  1838,  and  must 
prove  that  that  Assembly  appointed  new  trustees.  In  the  course  of  the 
organization,  some  unusual  proceedings  occurred.  A  Moderator  and  two 
clerks  were  removed,  and  others  elected  in  their  places.  All  this  was  done 
in  the  Assembly,  and  to  prove  that  we  were  right  in  doing  it  is  essential 
to  our  cause.  We  now  want  to  show  why  we  did  it.  Our  reason  was 
this:  that  there  were  several  commissioners  sent  to  the  Assembly  of  1838, 
from  certain  Presbyteries  belonging  to  the  Presbyterian  Church,  which 
prior  to  this  time,  year  after  year,  had  been  recognised  as  branches  of  that 
church — the  rights  of  v/hich  had  never  been  disputed.  That  these  com- 
missioners presented  their  commissions  to  the  proper  officers,  the  clerks, 
but  were  rejected;  not  on  account  of  any  real  or  pretended  informality 
in  the  documents,  not  in  a  case  of  contested  election,  but  in  obedience  to 
an  illegal  mandate  of  the  Assembly  of  1837.  That  we  demanded  that  the 
names  of  the  commissioners  thus  rejected  should  be  inserted  upon  the 
roll;  that  motion  after  motion  was  made  for  the  purpose,  which  the  Mo- 
derator refused  to  put  iQ.  the  house,  and  pronounced  out  of  order;  and  that, 


(50  PRESBYTERIAN  CHURCH  CASE. 

on  one  occasion,  he  said  to  a  person  who  tendered  to  him  a  commission, 
which  had  been  rejected  by  the  clerks,  ''We  do  not  know  you."  Fur- 
ther, that  the  Moderator  refused  to  put  to  the  house  an  appeal  from  liis 
decision.  After  these  repeated  acts  of  rejection  and  refusal,  it  was  that 
the  members  appointed  a  new  Moderator,  and  new  clerks.  Their  right 
to  do  so,  is  not  to  be  decided  at  this  stage  of  the  investigation.  The  act 
was  certainly  within  the  power  of  the  Assembly  at  that  time;  and  we 
assign  as  the  cause  of  our  proceeding,  a  deliberate,  preconcerted  plan,  on 
the  part  of  a  portion  of  the  Assemblies  of  1S37  and  1838,  to  exclude  the 
commissioners  from  the  exscinded  Synods.  In  1837,  resolutions  were 
passed,  cutting  ofi'  these  Synods  frOm  the  Church.  What  then  is  our 
object  ?  To  show  a  determined  purpose,  a  conspiracy  of  the  Old-school, 
carried  out  by  their  clerks  and  Moderator,  to  support  the  measures  of  ex- 
cision, by  excluding  certain  individuals.  How  can  we  prove  this  ?  It  is 
idle  to  say  that  these  commissioners  would  have  been  admitted  if  they  had 
applied  at  another  time.  Can  any  one  believe  that  it  was  not  the  fixed 
intention  of  the  Old-School  to  exclude  them  for  ever?  The  pledge  ex- 
acted from  the  clerks  demonstrates  this:  that  clinches  the  nail.  Well,  to 
prove  a  preconcerted  plan,  we  offer  to  show  that,  in  a  committee  of  the 
General  Assembly,  a  threat  was  proclaimed,  which  was  afterwards  acted 
upon  in  that  body;  that  it  was  declared  by  a  member  of  the  Old-school 
portion  of  the  committee,  that  unless  the  other  portion  consented  to  divide 
the  church  at  once,  without  consultation,  the  Old-school  party  in  the  As- 
sembly, would  secure  their  future  preponderance,  by  cutting  off"  a  portion 
of  their  opponents.  Is  not  this  evidence  material  ?  It  goes  to  show  the 
reason  of  the  subsequent  acts  of  excision — a  deliberate  design,  a  precon- 
certed plan.  These  we  offer  to  prove  by  declarations  made  at  the  time — 
the  declarations  not  of  a  mere  cypher,  a  dough-faced  man,  but  of  the 
head,  the  ])rime  mover,  the  Cor3^ph8eus  of  the  party.  We  offer  to  prove 
that  he  held  out  a  distinct  menace,  that  unless  the  terms  which  he  proposed 
were  accepted,  the  next  act  of  the  Assembly  would  be  the  total  exclusion 
of  certain  members.  Now,  if  it  is  proper  to  prove  this  at  all,  in  what  way 
are  we  to  prove  it,  but  by  evidence,  like  that  offered,  of  remarks  made  at 
the  time,  in  the  course  of  action,  in  the  committee  room,  and  in  the  house? 
There  is  no  other  way. 

It  is  said  that  all  the  conversations  in  that  committee  merged  in  the 
different  resolutions  and  proposals  made  by  the  two  portions  of  it.  This 
is  not  so.  These  documents  do  not  show  at  all  the  design  of  those  who 
passed  the  exscinding  acts.  Our  object  is  to  prove  a  fraudulent  design. 
I  say  this  without  intending  any  disrespect  to  these  gentlemen:  they  no 
doubt  thought  that  they  were  doing  what  was  perfectly  right.  But  if 
their  measures  were  illegal  and  unjust,  in  the  eye  of  the  law  they  were 
fraudulent.  How,  I  say,  arc  we  to  prove  all  this,  but  by  contemporaneous 
declarations?  There  is  no  other  method.  The  exscinding  resolutions 
present  only  the  naked  fact  of  the  excision.  But  it  is  said,  that  the  Gene- 
ral Assembly  of  1837  had  nothing  to  do  with  thaUof  1S3S;  that  if  the 
clerks  made  out  a  defective  roll,  the  Assembly  would  have  completed  it. 
No,  never!  and  this  is  the  very  thing  we  wish  to  demonstrate — to  demon- 
strate, by  showing  a  design,  a  pre-determined  plan.  Such  a  design  and 
plan,  I  repeat  it,  can  be  proved,  in  this  case,  only  by  the  declarations  of 
those  who  were  most  active  in  counselling  and  carrying  out  the  measure. 


TESTIMONY  FOR  THE  RELATORS.  Ql 

Mr.  Breckinridge,  a  leading  man  among  the  Old-school,  makes  certain 
declarations  in  a  committee  of  the  house;  these  declarations  are  acqui- 
esced in  by  his  party,  who  verify  them  by  subsequent  acts,  passed  with 
the  design  of  securing  a  majority.  Is  your  Honour  prepared  to  say,  that 
evidence  of  such  a  design  is  not  material,  to  show  that  we  were  right  in 
removing  the  Moderator  and  clerks,  who  in  pursuance  of  the  measures  of 
excision,  had  refused  seats  to  commissioners  regularly  appointed  ?  Ate 
the  exscinding  resolutions  valid?  No  member  of  the  bar  will  say  so. 
Even  the  counsel  for  our  opponents  will  not  say  so;  and  they  strive  to 
keep  them  in  the  dark.  But  these  acts  must  be  dragged  forth  into  the 
light  of  day.  The  design  with  which  they  were  passed  has  an  important 
bearing  on  the  case;  and  it  can  be  proved  only  by  such  declarations.  If 
so,  the' Court  will  admit  the  testimony. 

Mr.  Preston.  If  I  understand  the  proposition,  it  is  to  give  in  evidence, 
certain  declarations  made  by  Mr.  Breckinridge,  a  member  of  the  com- 
mittee alluded  to,  as  showing  the  design  with  which  certain  acts  of  the 
General  Assembly  were  performed.  We  object  to  the  admission  of  such 
testimony,  on  the  ground  that  an  individual  declaration  is  entirely  incom- 
petent to  the  proof  of  the  feelings  and  designs  which  actuated  such  an 
Assembly  as  that  the  proceedings  of  which  are  under  consideration.  It 
is  offered  as  explanatory  of  the  acts  of  a  recognised  public  body.  The 
declarations  of  a  single  man,  declarations,  too,  made,  not  in  the  course  of 
debate,  not  upon  the  floor  of  the  house,  but  in  a  subsidiary  meeting  of  cer- 
tain members  of  that  house — these  are  brought  forward  to  explain  public 
and  recorded  acts  of  a  judicial  Assembly.  If  the  design  of  those  acts  does 
not  appear  upon  their  face,  the  testimony  offered  must  either  contradict 
the  record,  or  be  consistent  with  it.  Here  then  is  the  dilemma.  If  con- 
sistent, why  attempt  to  confirm  that  which  is  already  certain,  to  bolster 
up  what  is  now  fully  supported  ?  If  contradictory,  shall  the  mere  decla- 
ration of  an  individual  overthrow  the  testimony  which  the  solemn  record 
bears  of  the  transaction  ?  Shall  secondary  evidence  destroy  that  which  is 
primary?  Who  ever  heard  of  the  proceedings  of  a  great  public  body  being 
expounded  or  explained  by  private  declarations?  To  state  a  case  exactly 
in  point:  if  your  Honour  were  sitting  in  judgment  upon  an  act  of  the 
Legislature  of  Pennsylvania,  you  would  not  allow  your  decision,  as  to  the 
validity  of  that  act,  or  the  power  of  the  body  that  had  passed  it,  to  be 
influenced  by  declarations  made  even  upon  the  floor  of  the  legislative  hall, 
much  less  by  declarations  uttered  in  a  committee-room.  So  far  from 
acknowledging  the  declaration  of  a  single  man  as  conclusive,  the  concur- 
rence of  ail  the  individual  members  of  the  body,  in  views  not  appearing 
on  the  face  of  the  record,  would  not  govern  your  decision.  I  venture  to 
assert — using  here  a  word  drawn  from  a  theological  source,  as  proper  in 
a  theological  controversy — I  venture  to  assert  that  the  exegetical  history 
of  a  public  body  has  never  been  introduced  to  explain  the  acts  of  that 
body.  If  so  we  should  call  on  every  individual  member,  in  order  to 
determine  whether  the  motives  and  designs  which  actuated  the  whole 
were  fair  or  fraudulent. 

But  we  have  another  serious  objection  to  the  testimony  offered,  depend- 
ing on  more  important  considerations.  Let  us  look  into  the  circum- 
stances of  the  case,  and  we  shall  find  more  general  grounds  for  its  rejec- 


62  PRESBYTERIAN  CHURCH  CASE. 

tion.  Here  I  may  say,  that  in  your  Honour's  decision  of  yesterday, 
respecting  the  admission  of  the  Minutes  of  the  General  Assembly  of 
1837,  as  evidence,  I  acquiesce.  So  far  as  that  record  is  connected  with 
the  exclusion  of  the  Synods,  it  is  competent  evidence;  but  no  farther. 
To  the  proof  of  other  acts,  or  to  show  a  fraudulent  design  in  those  en- 
gaged in  the  proceedings  referred  to,  it  is  clearly  incompetent.  No  issue 
is  presented  admitting  of  such  testimony.  In  the  pleadings  a  single  fact 
is  asserted  and  denied — the  fact  that  certain  men,  the  relators  in  this  suit, 
were  duly  elected  Trustees  of  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States.  This  fact  we  deny,  and  here  is  the  sole  is- 
sue in  the  case.  It  is  incumbent,  therefore,  on  the  relators  to  prove  the 
regular  organization,  the  Constitutional  authority,  the  paramount  power 
of  the  Assembly  to  which  they  owe  their  election.  That  power,  that 
authority,  we  contest:  here  is  the  naked  issue.  If  they  prove  theirs  the 
only  true  General  Assembly,  there  is  an  end  of  our  cause.  It  is  an  entire 
mistake — the  fact  taken  for  granted  by  our  opponents — that  we  are  en- 
deavouring to  set  up  an  opposition  General  Assembly.  We,  tender  no 
such  issue.  We  do  not  assert  that  the  Old-School  Assembly  of  1838  was 
the  Constitutional  Assembly:  our  cause  rests  on  broader  grounds.  We 
are  content  with  a  mere  general  negation  of  the  facts  alleged  on  the  other 
side.  No  matter  how  irregular,  or  unconstitutional,  how  false  or  fraudu- 
lent, have  been  all  the  proceedings  not  merely  of  the  Assembly  of  1837, 
and  of  the  incipient  organization  of  1838,  but  of  every  General  Assembly 
from  the  year  1800  to  the  present  time:  this  does  not  advance  their  proof 
in  the  smallest  degree.  We  are  anxious  to  keep  ever  in  view  the  real, 
the  naked  issue.  We  are  not  setting  up  one  Assembly  and  our  oppo- 
nents another.  We  are  not  contending  for  the  affirmative  of  one  issue, 
of  which  they  have  the  negative;  and  for  the  negative  of  another  of 
which  they  have  the  affirmative.  When  we  come  into  Court,  we  come  as 
defendants,  with  all  the  privileges  of  defendants.  Should  they  prove  our 
proceedings  foul,  false,  and  fraudulent,  how  would  this  establish  their 
claim  to  hold  office  under  a  righteous  power  ?  They  propose,  under  the 
authority  of  their  Assembly,  to  detrude — I  employ  a  word  before  intro- 
duced— to  detrude  from  the  Board  of  Trustees  of  the  Presbyterian 
Church,  a  reverend  and  venerable  gentleman,  who  sits  near  me— Dr. 
Green,  who  holds  his  office  by  virtue  of  the  original  appointment  of  the 
Legislature,  independently  of  the  Assembly  of  1837,  or  of  1838,  or  any 
other  General  Assembly.  There  is  no  imputation  of  irregularity  in  his 
appointment.  He  is  above  all  such  imputation — untouched  by  it.  We 
then  are  not  called  upon  to  do  any  thing — to  prove  any  thing.  It  is  for 
our  opponents  to  strike  down  this  venerable  gentleman  by  a  paramount 
power.  Why  tlien  should  we  go  into  an  investigation  of  the  proceed- 
ings of  the  Assembly  of  1837?  Not  one  of  those  whom  they  attempt  to 
eject  from  their  office  holds  under  that  impugned  Assembly.  All  of 
them  can  refer  to  an  antecedent  date  as  the  time  of  their  appointment, 
though  he  to  whom  I  have  just  alluded  is,  I  believe,  the  only  relic  of  the 
original  company.  They  all  claim  under  General  Assemblies  on  which 
no  shadow  of  imputation  rests.  The  proceedings  of  the  Assembly  of 
1837  therefore  cannot  affect  either  of  the  issues  which  the  case  presents. 
What  are  the  facts  of  this  case — those  which  are  conceded  on  all  sides? 


TESTIMONY  l'X)R  THE  RELATORS.  63 

Each  General, Assembly  at  the  close  of  its  session,  closes  its  existence,  is 
dissolved,  vanishes  in  thin  air. 

The  earth  hath  bubbles  as  the  ocean  hath, 
And  these  are  of  them. 

But  is  there  nothing  at  all  left?  No  prolific  root  from  which  another 
Assembly  may  spring?  No  germ  of  a  future  existence?  No  nucleus 
from  and  around  which  a  succeeding  body  may  grow  up?  Yes,  there  is 
such  a  prolific  root,  such  a  germ,  a  nucleus  still  ])reserved  for  a  new  or- 
ganization. This  nucleus  is  the  surviving  power  of  the  Moderator,  who 
presides  at  the  opening  of  the  new  Assembly,  and  of  the  clei'ks  who  as- 
sist in  its  formation.  In  the  year  1S37  such  an  Assembly  was  dissolved. 
In  1838  another  was  organized;  but  who  met  for  this  purpose?  The 
elements  of  which  that  Assembly  was  to  be  composed.  And  why  did 
they  meet?  In  pursuance  of  an  act  of  the  preceding  General  Assembly, 
under  the  auspices  of  the  Moderator,  whose  authority  still  survived,  and 
in  the  presence  of  the  clerks.  In  other  words,  there  were  materials 
around  which  a  new  organization  was  to  be  efiected. 

Thus  far  all  of  us  are  agreed.  The  validity  of  the  proceedings  which 
I  have  detailed,  even  our  opponents,  "by  the  advice  of  counsel  learned 
in  the  law,"  admit.  All  that  was  done,  up  to  this  stage  of  the  proceed- 
ings, was  done  regularly.  Now  came  the  accepted  time — now  the  pe- 
riod when  a  new  state  of  things  was  to  rise  into  existence.  Still  Dr. 
Mason  turned  towards  the  Moderator,  still  addressed  the  Moderator — 
the  Moderator  not  yet  "  shorn  of  his  ofiice."  But  the  acts  of  refusing 
to  put  the  motion  ofiered,  and  to  put  the  appeal,  were  derogatory  from 
his  power,  and  by  them  was  he  thus  shorn.  The  elements  of  the  incipi- 
ent organization  were  thrown  upon  the  amplitude  of  their  original  pow- 
ers. Up  to  the  date  of  this  occurrence,  of  the  act  by  which  it  is  said 
that  that  Moderator  and  those  clerks  forfeited  their  ofiice,  we  are  all 
agreed — all  upon  the  same  road.  How  then  does  the  testimony  ofiered 
apply  ?  Suppose  the  Moderator,  in  organizing  the  new  Assembly,  failed 
in  his  duty,  committed  a  fundamental  error,  and  that  it  became  necessary 
to  remove  him;  suppose,  too,  that  his  intention  was  evil,  corrupt,  fraudu- 
lent. If  the  act  done  was  illegal,  the  most  conclusive  evidence  of  right 
motives  cannot  protect  it  from  condemnation :  if  legal,  the  proof  of 
wrong  motives,  of  the  most  fraudulent  design,  cannot  invalidate  it,  or 
render  the  proceedings  of  the  other  party  any  the  less  violent,  disorderly, 
and  revolutionary.  Then,  no  matter  what  motives  actuated  us — what 
was  our  concerted  plan  or  purpose. 

I  therefore  do  not  here  offer  to  vindicate  any  declaration  or  any  me- 
nace. However  violent  or  improper  our  opponents  may  consider  that 
which  they  have  offered  to  prove,  we  might,  with  safety,  as  regards  the 
issue  of  this  cause,  admit  the  charge.  But  I  make  no  such  admission. 
We  could  exhibit  a  complete  vindication,  though  we  object  to  its  being 
introduced  here.  Not  only  could  I  vindicate  the  declarations  uttered  by 
Mr.  Breckinridge — I  could  vindicate  them  in  a  Christian  and  Presbyte- 
rian spirit.  What  I  object  to  is  the  waste  which  the  introduction  of  such 
testimony  would  produce — the  waste  of  words,  the  waste  of  time,  and, 


64  PRESBYTERIAN  CHURCH  CASE. 

worst  of  all,  the  waste  of  temper,  in  the  investigation  of  collateral  issues ; 
not  that  we  shrink  from  the  attempt  to  vindicate  our  words. 

Allow  me,  before  closing,  to  illustrate  a  position  that  we  take  in  this 
controversy.  Our  friends  on  the  other  side  may  as  well  be  advised  of  it, 
and  I  throw  it  out  now.  We  contend,  that  no  regularly  organized  Gene- 
ral Assembly  has  been  convened  since  the  year  1800.  In  1799,  the  act 
incorporating  the  Trustees  of  the  General  Assembly  of  the  Presbyterian 
Church  was  passed.  And  whom  did  it  incorporate.''  The  very  title  of 
the  instrument  tells  us  whom.  It  is  called  "  An  Act  for  Incorporating 
the  Trustees  of  the  Ministers  and  Elders  constituting  the  General  As- 
sembly of  the  Presbyterian  Church  in  the  United  States  of  America.'* 
Now,  are  not  these  words — "  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States,"  potential?  Was  not  the  act  designed  to 
incorporate  their  trustees,  and  only  theirs?  Well,  in  the  year  ISOl,  the 
Assembly  entered  into  articles  of  agreement  with  certain  Congregational 
Churches,  by  which,  Congregationalists  were  allowed  to  be  represented 
in  that  body.  Was  not  this  an  avoidance  of  the  trust  created  by  the 
charter?  Was  that  charter  granted"  to  a  mixed  body  of  Presbyterians 
and  Congregationalists  ?  Suppose  Baptists,  Episcopalians,  Methodists, 
and  Catholics,  had  been  introduced,  would  they  have  formed  the  Assem- 
bly contemplated  by  the  act  of  incorporation  ?  Or  put  a  still  stronger 
case.  Suppose  the  persons  thus  admitted  to  our  fellowship  and  commu- 
nion, by  their  numbers,- their  dexterity,  and  "  the  advice  of  counsel  learned 
in  the  law,"  had  ousted  us  entirely,  proclaimed  themselves  the  true  General 
Assembly,  and  appointed  counsel  to  come  into  this  court,  and  support 
their  rights :  would  your  Honor  say  that  these  composed  the  body  to 
whom  that  charter  was  given  ?  It  seems  to  me,  that  the  introduction  of 
improper  members  into  this  body  corporate,  or  rather  quasi  corporate, 
may  have  vitiated  every  Assembly.  The  act  contemplated  none  but 
Presbyterians — thorough-paced,  true-blue  Presbyterians. 

Our  opponents,  may  it  please  your  Honour,  must  show  a  paramount 
authority.  Therefore,  if  the  acts  of  all  previous  Assemblies  were  proved 
null  and  void,  their  object  would  be  defeated.  Besides,  we  object  to  an 
exegetical  exposition  of  the  proceedings  of  1S37:  it  must  pro\te  fallacious. 

Judge  Rogers.  The  proceedings  of  the  Assembly  of  1837,  have  a 
manifest  bearing  on  the  issue  in  this  case;  but  I  cannot  perceive  how  the 
acts  or  declarations  of  individual  rilembers  of  that  body  can  properly  be 
admitted  to  explain,  or  in  any  way  affect  those  proceedings.  I  must  there- 
fore exclude  the  testimony. 

Mr.  Randall.  Judge  Jesup,  will  you  be  good  enough  to  state  all  that 
you  know  in  regard  to  the  pledge  exacted,  by  the  Assembly  of  1837,  from 
its  officers,  that  they  would  carry  out  the  exscinding  resolutions,  in  or- 
ganizing the  Assembly  of  1838. 

Mr.  Hubbell  objected  to  the  question.  The  best  evidence  of  the  pro- 
ceedings of  the  Assembly  was  its  own  minutes.  On  such  a  subject,  parol 
evidence  was  inadmissible.  His  objection  was  not  to  the  facts  themselves, 
but  to  the  mode  in  which  it  was  proposed  to  prove  them. 

Mr.  Randall.  In  many  cases  the  minutes  are  the  best  evidence  of 
the  proceedings  of  the  Assembly;  but  are  we  bound  to  prove  by  the  min- 
utes, what  cannot  appear  on  them?     I  propose  to  show,  that  after  the  ex- 


TESTIMONY  FOR  THE  RELATORS.  65 

scinding  resolutions  of  1837,  the  Moderator  and  clerks  of  the  Assembly- 
were  called  upon  to  give  a  pledge,  that  they  would  act  in  accordance  with 
those  resolutions,  in  organizing  the  Assembly  of  1S3S.  That  a  motion 
was  made  to  that  effect;  but  that  while  it  was  pending,  the  officers  gave  the 
pledge  required,  and  then  the  motion  was  withdrawn.  That  afterwards, 
these  proceedings  were  put  upon  the  minutes  by  the  clerk,  but,  by  some  gen- 
tlemen sympathising  with  the  Old-school  party,  were  withheld  from  pub- 
lication. We  are  not  bound  by  the  minutes.  What  is  a  minute?  The 
mere  narrative  of  the  clerk — an  officer  not  under  oath.  If  a  minute  be 
inaccurate  or  defective,  are  we   bound  by  it?     Is  a  minute  infallit)le? 

Judge  Rogers.  Perhaps  these  proceedings  are  recorded.  Is  the  re- 
cord here  ? 

'Mr.  Randall.  We  have  summoned  Dr.  McDowell,  the  Stated  Clerk, 
by  a  subpcena  duces  tecum,  directing  him  to  produce  the  original  min- 
utes. 

[Dr.  McDowell  being  called  for,  it  was  found  that  he  was  not  in  court.] 

Mr.  Randall.  I  hand  to  your  Honour,  the  Old-school  minutes  of 
1838.  There,  on  page  15,  is  a  record  which  will  explain  what  I  desire  to 
prove  by  the  testimony  of  the  witness. 

[The  following  is  the  part  thus  referred  to  by  Mr.  Randall.  We  copy 
it  for  the  reader,  though  it  was  not  laid  before  the  jury.] 

"The  committee  appointed  to  examine  into  a  supposed  discrepancy  between  the  print- 
ed and  manuscript  Minutes  of  the  General  Assembly  of  1837,  made  a  report,  which  was 
read,  accepted,  amended,  and  adopted,  and  is  as  follows,  viz. 

"The  committee  have  collated  the  orijrinal  records  as  they  were  made  by  the  Per- 
manent Clerk,  approved  of  by  the  Assembly,  and  put  into  the  hands  of  the  Committee  of 
Revision,  with  ihe  printed  minutes,  and  find  the  following  omission  in  the  latter,  viz. 

"A  resolution  offered  by  Mr.  Ewing,  to  appoint  a  committee  to  confer  with  the  offi- 
cers of  the  Assembly,  who  compose  tlie  Committee  of  Commissions,  to  procure  from 
them  a  pledge  to  carry  out  the  action  of  the  Assembly  in  their  official  character  to  its 
full  accomplishment;  which  resolution  was  subsequently  withdrawn,  upon  satisfactory 
statements  before  the  Assembly,  on  the  part  of  said  officers,  of  their  intention  to  do  as 
the  Assembly  should  direct  them,  which  were  also  omitted  in  the  printed  Minutes. 

"Your  committee  impute  no  blame  to  the  committee  appointed  by  the  Assembly  to 
revise  and  prepare  the  minutes  for  publication,  on  account  of  this  omission,  although 
they  are  of  opinion  that  it  would  have  been  better  to  have  published  the  entire  record. 
To  prevent  future  mistakes  in  this  matter,  your  committee  would  recommend  to  the 
Assembly  the  adoption  of  the  following  resolution,  viz. 

"  Resolved,  That  the  records  of  the  Assembly  be  published  in  all  respects  substanti- 
ally as  they  are  approved  by  that  body,  when  submitted  by  the  Permanent  Clerk,  and 
that  in  no  case  shall  any  erasure  be  made  in  the  manuscript  records,  except  by  the  ex- 
press order  of  the  Assembly  itself. 

"  Your  committee  would  further  recommend  that  the  minutes  be  read  and  carefully 
corrected  at  the  opening  of  each  session  of  the  Assembly,  and  that  no  subsequent  re- 
vision or  alteration  be  permitted,  except  by  vote  of  the  Assembly.  Also,  that  the  Sta- 
ted Clerk  be  directed  to  record,  on  the  transcribed  minutes  at  their  proper  place,  on 
interleaved  blank  pages,  the  whole  of  the  omitted  minutes  alluded  to  in  this  report." 

Mr.  Randall,  in  continuation.  That  is  the  point  in  regard  to  which 
we  desire  to  give  testimony.  Suppose  that  a  resolution  was  offered  and 
subsequently  withdrawn:  cannot  we  prove  the  contents  of  that  resolution 
in  any  way  but  by  the  minutes — minutes  prepared  by  officers  not  acting 
under  the  sanction  of  an  oath.  Minutes  are  not  evidence  at  all,  but  for 
the  sake  of  convenience.  If  I  can  prove  by  a  witness,  who  gives  his  tes- 
timony under  oath,  what  were  the  contents  of  Mr.  Ewing's  resolution, 
shall  I  not  be  permittecVto  do  so?  The  printed  minutes  have,  by  agree- 
9 


55  PRESBYTERIAN  CHURCH  CASE. 

ment,  been  given  in  evidence  instead  of  the  originals,  in  order  to  save 
Dr.  McDowell  the  trouble  of  testifying;  but  they  certainly  are  not  conclu- 
sive. If  the  minutes  stated  that  a  resolution  was  withdrawn,  would  I  not 
be  at  liberty  to  prove  that  it  was  not  withdrawn,  or  that  it  was  put  to  the 
house  at  another  period,  and  carried?  A  memorandum  of  the  proceedings 
of  the  Assembly,  made  by  any  body  else,  might  just  as  well  be  relied  on, 
as  the  memorandum  of  the  clerk. 

Judge  Rogers.  First  give  in  evidence  the  record,  which  you  suppose 
incorrect,  as  it  stands,  and  afterwards  you  may  correct  it. 

Mr.  Randall  said,  that  Dr.  McDowell  'should  be  present  the  next 
morning,  with  the  original  minutes. 

Court  adjourned. 

FRIDAY  MORNING,  March  8th.— 10  o'clock. 

Mr.  Randall.  I  now  propose  to  call  Dr.  John  McDowell,  Stated 
Clerk  of  the  General  Assembly,  who  has  been  sumhioned,  by  a  subpoena 
duces  tecum,  to  produce  that  part  of  the  original  minutes  of  the  Assem- 
bly of  1837,  referred  to  yesterday,  which  relates  to  the  pledges  given  by 
the  clerks,  that  they  would  carry  out  the  decisions  of  that  Assembly,  in 
regard  to  the  exscinded  Synods. 

Dr.  McDoivell  being  called,  produced  certain  papers  as  the  original 
minutes  required.  On  the  face  of  the  papers  appeared  many  oblitera- 
tions, and  interlineations,  and  several  parts  were  crossed  or  cancelled  with 
the  pen. 

Mr.  Randall.  I  offer  to  read  the  whole  of  these  papers  in  evidence. 

Mr.  Ingersoll.  We  have  no  objection  to  their  being  read,  but  to  their 
being  read  as  the  minutes  of  Ihe  Assembly,  when  in  fact  they  are  not  so. 
These  are  only  the  rough  minutes  prepared  by  the  clerk,  to  be  presented 
to  the  house,  for  approval,  or  correction. 

Mr.  Randall.  The  witness  was  served  with  a  subpoena  duces  tecum, 
and  he  produces  these  papers.  Papers  thus  presented  may  always  be  read 
without  inquiry,  and  without  the  attestation  of  the  person  producing 
them.  We  have  offered  to  prove  the  facts  in  question  by  parol  testimony. 
This  offer  was  refused:  it  was  said  that  the  minutes,  as  the  best  evidence 
in  the  case,  must  be  produced.  Here  they  are:  I  offer  them  in  evidence, 
and  propose  to  read  the  whole,  as  well  the  parts  erased,  and  crossed  by 
the  pen,  as  the  rest. 

Mr.  Randall,  then  read  an  extract  from  the  papers,  noting  various 
erasures  of  words  and  sentences,  as  he  proceeded. 

"  Tuesday  morning  June 6lh. — Mr.  Ewing  offered  the  followinij  resolution,  viz: 

"  Resolved,  That  a  committee  be  appointed  to  confer  with  the  officers  of  this  Assem- 
bly, who  compose  the  Committee  of  Commissions,  and  to  obtain  and  communicate  to  this 
body,  their  explicit  promise  or  refusal,  to  carry  out,  in  all  its  parts,  the  reform  entered 
upon  during  our  present  sessions,  by  the  full  and  exact  performance  on  their  part,  as 
ministerial  officers  of  this  body,  of  all  the  duties  either  expressly  directed,  or  necessarily 
implied,  by  the  action  of  the  Assembly,  for  the  purification  of  the  Church  ;  and  which 
are  required  in  g-iving  entire  efficacy  to  its  acts,  in  all  their  parts,  and  especially  in 
completing  the  roll  of  the  next  and  subsequent  Assemblies. 

"  After  debate,  adjourned  till  this  afternoon  at  3^  o'clock. 

"  Concluded  with  Prayer." 

"  Tuesday  afternoon,  3^  o'clock. — The  Assembly  met  and  was  opened  with  prayer- 
The  mrnutesof  the  last  session  were  read. 


TESTIMONY  FOR  THE  RELATORS.  67 

*'The  Assembly  took  up  the  unfinished  business  of  this  morning, viz:  the  resolution 
respecting  the  duty  of  the  Committee  of  Commissions. 

"The  Stated  Clerk  asked  and  obtained  permission  to  make  a  statement,  in  relation  to 
his  duty  as  a  member  of  the  Committee  of  Commissions. 

"The  Permanent  Clerkobtained  the  same  permission.  Then  Mr.  Evving  had  leave 
to  withdraw  his  resolution." 

Mr.  Randall.  The  marks  on  these  papers  are  of  two  kinds,  erasures 
and  crosses.  They  are  the  rough  minutes  made  up  hy  the  clerk.  The 
original  of  Mr,  Swing's  motion  is  not  here  ;  what  I  have  read  is  but  a 
copy.     I  will  ask  Dr.  McDowell  what  has  become  of  that  original. 

Mr.  Ingersoll.     We  object  to  the  witness  being  called  upon. 

Mr.  Randall.  We  have  a  perfect  right  to  examine  a  witness  produc- 
irtg  papers,  in  obedience  to  a  subpoena  duces  tecum,  in  regard  to  the 
character  of  such  papers. 

Judge  Rogers.     The  witness  may  be  examined. 

Dr.  McDowell.  I  have  never  had  in  my  possession  the  original  reso- 
lution offered  by  Mr.  Ewing. 

Rev.  John  M  Krebs,  the  Permanent  Clerk  of  the  Assembly,  in  answer 
to  an  inquiry  respecting  the  paper  which  he  had  read,  stating  his  views 
of  duty  as  a  clerk,  in  relation  to  the  exscinding  acts,  said  that  the  original 
of  that  paper  was  not  in  his  possession;  that  he  had  sent  it  to  the  printer; 
but  could  furnish  an  exact  copy. 

Mr.  Randall.     The  original  is  necessary. 

Mr.  Ingersoll.     We  have  made  no  objection  to  any  paper. 

Mr.  Randall  then  produced  "The  Philadelphia  Observer,"  of  De- 
cember 14th,  1837,  containing  a  copy  of  a  paper  purporting  to  be  that 
read  by  Mr.  Krebs. 

Mr.  Krebs.  I  have  no  doubt  that  it  is  perfectly  correct.  I  sent  the 
orignal  copy  to  "  The  Presbyterian." 

Mr.  Randall  then  read  the  paper,  as  follows: 

"The  undersigned,  Permanent  Clerk  of  the  General  Assembly,  begs  leave  to  state 
to  the  Assembly,  that  he  has  no  other  reluctance  to  answer  the  question  proposed  by 
the  resolution  offered  this  morning  by  Mr.  Ewing,  than  that  arising  from  the  fear  of  the 
probability,  strengthened  by  the  course  of  debate  on  this  resolution,  that  his  readiness 
to  reply,  and  the  subject  matter  of  his  reply,  in  connexion  with  the  phraseology  of  the 
resolution,  may  be  misunderstood  and  misrepresented  where  there  is  no  opportunity  for 
explanation.  But  in  respect  to  the  precise  object  of  the  question  iiself,  as  it  specifically 
applies  to  the  duties  of  the  Permanent  and  Stated  Clerks,  as  defined  in  their  appoint- 
ment as  a  Committee  of  Commissions,  he  has  no  hesitation  in  saying,  that  he  fully 
recognises  the  authority  of  the  General  Assembly  to  instruct  its  officers,  and  to  ascertain 
that  they  understand  their  duties  as  ministerial  officers  of  this  body,  both  in  relation  to 
the  present  Assembly  and  to  future  Assemblies,  of  which  they  continue  to  be  officers, 
until  they  shall  have  been  formally  removed. 

"He  considers  it  a  dangerous  principle  to  confide  such  discretionary  power  to  the 
Committee  of  Commissions,  in  respect  to  the  action  of  this  or  of  any  subsequent  General 
Assembly,  as  it  was  argued  this  morning  that  this  committee  possessed.  Five  years 
ago,  the  undersigned  first  had  the  honour  to  sit  in  this  house  as  a  commissioner  from  the 
Presbytery  of  New  York,  and  three  limes  recorded  his  vote  adverse  to  the  resolutions 
passed  by  the  Assembly  of  1832,  creating  the  then  Second  Presbytery  of  Philadelphia, 
on  the  ground  that  the  Assembly  had  no  constitutional  right  to  form  that  Presbytery. 
Yet  on  the  principle  assumed  this  morning  in  this  discussion,  the  undersigned,  if  he  had 
been  a  member  of  the  Committee  of  Commissions  in  the  year  1833,  miglit  have  exclu- 
ded the  commissioners  from  that  Presbytery  from  seats  in  the  General  Assembly,  in  the 
exercise  of  the  discretion  jmpliedly  attributed  to  the  committee,  of  judging  and  acting 
on  their  private  views  of  tliv  constitutionality  of  the  act  of  the  Assembly,  erecting  that 


gg  PRESBYTERIAN  CHURCH  CASE. 

Presbytery.  He  believes,  that  after  the  will  of  the  Assembly  is  expressed,  the  com- 
mittee have  no  discretion  in  the  case,  and  have  no  right  (as  for  himself  he  has  no  desire) 
lo  assume  so  high  a  responsibility,  when  acting  as  a  mere  executive  officer.  The  con- 
Blitutionality  of  the  business,  which  is  the  subject  matter  of  commands  intrusted  to  him 
to  execute,  is  not  a  question  for  him,  but  for  the  Assembly  to  decide;  and  can  be  a 
question  for  him  only  as  an  individual  member  of  this  house,  when  occupying  a  seat  in 
it  as  a  commissioner.  He  considers  himself,  therefore,  simply  as  an  agent — a  ministe- 
rial officer  of  the  Assembly  to  record  their  proceedings,  and  to  do  such  other  things, 
(including  the  duty  of  a  member  of  the  Committee  of  Commissions,)  as  have  been  spe- 
cified in  the  acts  of  this  and  of  preceding  Assemblies,  creating  and  defining  the  duties 
of  his  office.  This  opinion  he  has  expressed  in  private  to  members  of  both  parties  in 
the  house. 

"He  understands  it  therefore  to  be  his  duty,  as  a  member  of  the  Committee  of  Com 
missions,  and  especially  in  view  of  the  rules  adopted  this  morning,  on  the  motion  of 
Dr.  Alexander,  (and  he  will  act  on  that  understanding,  unless  otherwise  expressly  di- 
rected by  the  Assembly,)  to  enrol  only  such  commissioners  to  the  next  Assembly  as  shall 
come  from  Presbyteries,  now,  or  at  the  close  of  this  Assembly,  recognised  to  be  com- 
ponent and  integral  parts  of  the  Presbyterian  Church;  and  that,  to  the  Assembly  so 
constituted,  when  duly  organized  for  the  transaction  of  business,  it  will  be  his  duty  to 
report  the  names  of  persons  claiming  to  be  commissioners  from  Presbyteries  that  may 
be  formed  during  the  intervening  year,  or  from  Presbyteries  belonging  to  the  Synods 
which  have  been  declared  by  the  Assembly  to  be  out  of  the  Presbyterian  Church,  should 
such  persons  present  commissions  to  the  committee. 

"  JOHN  M.  KREBS. 

"  Philadelphia,  June  6lh,  1837." 

Mr.  Randall.  I  suppose  there  will  be  no  objection  to  this  paper's  be- 
ing cut  out,  that  it  may  go  to  the  jury. 

Mr.  Ingersoll.  Excision  is  a  very  dangerous  type.  We  now  propose 
to  call  the  clerks,  to  show  what  the  papers,  which  have  been  read  as 
minutes,  really  are. 

Mr.  Randall  objected,  that  this  was  not  the  proper  time  for  such  tes- 
timony, but  afterwards  waved  the  objection,  and  asked  Dr.  McDowell 
to  explain  the  matter. 

Dr.  McDowell.  The  paper  was  not  drawn  up  by  me ;  it  is  in  the 
hand-writing  of  Mr.  Krebs. 

Rev.  John  M.  Krebs — sworn,  vnth  the  iiplifted  hand.  I  will  read 
the  minute  as  I  prepared  it,  and  offered  it  to  the  meeting  of  the  Assem- 
bly, in  the  afternoon,  to  be  passed  upon  by  that  body.  [Here  Mr.  Krebs 
read  what  is  above  given.]  The  words  which  I  have  read  are  the  words  read 
to  the  Assembly  to  be  approved.  The  custom  of  the  clerk  is,  to  turn  his 
face  toward  the  members  of  the  house,  and  read  the  minute  which  he  has 
prepared.  This  was  approved  as  a  correct  minute,  without  a  word  of 
dissent.  These  minutes  are  made  up  during  the  debate,  and,  when  I  am 
not  satisfied  with  any  expression,  I  make  erasures  and  interlineations,  so 
as  to  have  a  fair  record  to  read  at  the  opening  of  the  next  session  of  the 
Assembly.  This  is  my  process  of  making  up  the  record,  and  erasures  of 
the  character  mentioned  are  very  frequent.  Sometimes  erasures  are  made 
by  order  of  the  Assembly. 

Mr.  Hubbell.  There  are,  on  these  papers,  marks  of  two  kinds — era- 
sures and  marks  of  cancellation. 

Mr.  Krebs.  I  do  not  know  by  whom  the  cancellation  was  made,  ex- 
cept from  rumor.  It  was  not  done  by  me,  or  by  the  General  Assembly, 
or  by  their  order. 

The  witness  being  about  to  give  evidence  of  what  was  done  in  regard 


TESTIMONY  FOR  THE  RELATORS.  Qg 

to  this  cancelled  minute,  by  the  Assembly  of  1838;  Mr.  Randall  ob- 
jected to  his  going  into  that  matter. 

Mr.  Krebs.  The  paper  that  I  read  was  never  directed  to  be  put  upon 
the  minutes.  [Here -Mr.  Randall  waving  his  objection,  the  witness  re- 
curred to  the  former  subject.]  The  General  Assembly  of  1838  ordered 
that  the  parts  cancellated  should  be  recorded  on  the  transcript  of  the 
minutes. 

Mr.  Randall  objected  to  the  witness  proceeding  farther,  saying  that 
he  had  never  meant  to  cast  any  imputation  upon  the  clerks. 

Mr.  Huhhell.  We  want  to  prove  this  cancellation  an  unauthorized 
act.  And  that  it  was  on' account  of  it  that  the  original  minute  did  not  go 
into  the  printed  copies,  or  appear  on  the  formal  transcript.  In  1838, 
by  order  of  the  Assembly,  it  was  restored. 

Judge  Rogers.     We  will  take  it  as  a  part  of  the  minutes  of  1837. 

Mr.  Krebs,  examined  by  Mr.  Ingersoll.  The  paper  that  I  read  was 
a  simple  statement  of  my  views.  I  asked  leave  to  insert  it  in  the  minutes, 
but  no  motion  was  made  to  that  effect,  and  I  did  not  feel  at  liberty  to  in- 
sert it  without.  I  afterwards  published  it  myself.  It  did  not  belong  to 
the  Assembly. 

Examined  by  Mr.  Randall.  I  do  not  knov/  where  the  original  pa- 
per is.  I  gave  it  to  Mr.  Engles,  editor  of  the  Presbyterian,  with  a  request 
that  he  should  publish  it.  I  read  this  paper  by  permission,  before  Mr. 
Ewing  had  withdrawn  his  resolution.  First  I  made  a  statement  of  about 
ten  minutes,  and  then  read  the  paper.  I  cannot  tell  where  the  original 
copy  of  Mr.  Ewing's  resolution  is.  The  copy  on  the  minutes  is  a  correct 
one.  Such  papers  are  always  destroyed,  as  soon  as  a  copy  has  been 
taken. 

Dr.  McDowell  sworn — examined  by  Mr.  Hubbell.  That  you  may 
understand  the  marks  of  cancellation  which  appear  on  these  papers,  I 
would  refer  you  to  page  498  of  the  Minutes  of  1837,  where  mention  is 
made  of  the  appointment  of  a  committee  to  revise  the  minutes. 

"The Stated  Clerk,  with  Dr.  Cuyler  and  Mr.  Grant  were  appointed  a  commiltee  to 
revise  the  Minutes,  and  prepare  them  for  publication." 

These  minutes,  on  the  rising  of  the  General  Assembly,  were  put  into 
my  hands,  either  as  Stated  Clerk,  or  as  Chairman  of  the  Committee.  The 
committee  met  in  my  study  for  several  days,  and  made  various  altera- 
tions, striking  out  the  parts  which  you  see  marked  with  a  cross.  The 
obliterations  had  been  made  before.  That  this  matter  may  be  under- 
stood, I  should  say  that  it  is  customary  for  the  whole  minutes  to  be  read 
over  to  the  Assembly,  at  the  close  of  its  sessions;  but  occasionally  they 
are  in  haste,  and  have  several  times  appointed  a  committee  to  make  the 
corrections.  It  was  under  such  powers  that  we  acted  in  1837.  We 
thought,  that  as  Mr.  Ewing's  motion  had  been  withdrawn,  it  ought  not 
to  be  made  a  m.atter  of  record.  Mr.  Grant,  one  of  the  members  of  the 
committee,  differed  from  us  in  opinion,  in  regard  to  this  point.  The 
pledge  given  by  Mr.  Krebs,  I  never  have  had;  it  never  came  to  me  in 
any  form.  The  Minutes  of  1837  were  printed,  I  think,  about  the  first  of 
August :  as  soon  as  the  revision  was  completed,  they  were  sent  to  press. 

Examined  by  Mr.  Wood.  The  statements  made  by  the  Clerks 
formed  no  part  of  thejyiinutes.     We  left  out  every  thing,  as  if  the  trans- 


70 


PRESBYTERIAN  CHURCH  CASE. 


action  had  never  happened.  The  remarks  made  do  not  now  appear,  but 
the  fact  that  they  were  made  does.  These  crosses  were  made  by  the 
committee.     The  obliterations  I  know  nothing  of. 

Examined  by  Mr.  Huhhell.  The  statement  which  I  made  was  never 
put  on  the  minutes.  The  statement  of  neither  of  the  Clerks  was  filed. 
Mine  was  not  in  writing.     I  can  give  the  substance  of  it,  if  proper. 

Judge  Jesup — in  continuation.  My  recollection  is  that  the  matter 
was  as  it  has  been  stated.  In  the  forenoon  Mr.  Ewing  offered  his  reso- 
lution; and,  in  the  afternoon,  Dr.  McDowell  and  Mr.  Krebs  made  their 
statements.  Dr.  McDowell  made  a  statement  of  his  views  of  his  duty  as 
a  clerk,  of  which,  though  I  cannot  repeat  the  whole,  a  part  is  impressed 
upon  my  memory.  After  Mr.  Ewing's  resolution  had  been  discussed  for 
some  time,  the  Assembly  adjourned  to  the  afternoon.  In  the  afternoon 
Dr.  McDowell  asked  leave  to  make  a  statement;  and  said,  that  he  did  not 
feel  willing  to  give  a  pledge,  as  such,  to  the  Assembly;  but  would  state 
his  views.  That  he  did  not  think  he  could  properly-  exercise  any  discre- 
tion in  the  matter.  That  he  was  only  a  ministerial  officer,  and,  as  such, 
would  carry  out  the  views  of  the  Assembly,  and  that  he  should  feel  him- 
self bound  so  to  do,  as  long  as  he  retained  the  office,  whatever  might  be 
his  opinion  as  a  private  individual.  It  is  impressed  upon  my  mind  that 
he  added,  that  if  he  found  himself  so  situated  that  he  could  not  consist- 
ently with  his  principles  carry  out  the  views  of  the  General  Assembly;  he 
would  resign;  but  I  am  not  clear  that  he  said  so.     This  is  all  I  recollect. 

When  Mr.  Ewing  rose  and  withdrew  his  resolution,  it  was  said  either 
by  him  or  some  other  person,  that  the  explanations  were  satisfactory;  and 
leave  being  asked  to  withdraw  the  motion,  it  was  granted  by  a  vote  taken. 

No  cross-examination. 

Rev.  Miles  P.  Squier — sworn.  I  was  a  commissioner  to  the  General 
Assembly  of  1838,  from  the  Presbytery  of  Geneva,  which  is  within  the 
bounds  of  the  Synod  of  Geneva.  The  commissions  of  the  commissioners 
from  the  exscinded  Synods  to  the  Assembly  of  1838,  were  handed  to  my- 
self and  Judge  Brown,  of  Ohio,  on  Thursday  morning,  and  were  by  us 
tendered  to  the  clerks.  Dr.  McDowell,  and  Mr.  Krebs.  Dr.  McDowell 
in  the  name  of  the  committee  replied,  "  We  are  not  permitted  by  the  in- 
structions of  the  Assembly  to  receive  these  commissions ;  we  cannot  do  it. 
Were  I  to  exercise  my  own  judgment  I  might  do  very  differently,  but  I 
am  bound  by  the  instructions  of  the  Assembly." 

Mr.  Randall,  handing  a  bundle  of  papers  to  the  witness.  Are  these 
the  commissions  which  you  and  Judge  Brown  presented  to  the  clerks  ? 

Mr.  Squier.  I  have  no  doubt  these  are  they.  There  were  about  fifty 
of  them.  (After  looking  over  them)  There  can  be  no  manner  of  doubt 
that  these  are  the  commissions.  They  were  stated  to  be  commissions 
from  Presbyteries  within  the  four  exscinded  Synods.  No  objection  was 
made  to  their  form.  They  were  not  received,  examined,  or  opened  by  the 
clerks.  I  desired  the  gentlemen  present  to  take  notice  of  the  refusal.  This 
interview  took  place  in  the  committee  room  of  the  Seventh  Presbyterian 
Church,  between  nine  and  ten  o'clock  in  the  morning,  the  place  and  time, 
at  which  it  had  been  advertised,  that  the  clerks  would  be  in  waiting  to  re- 
ceive commissions. 

Cross-examined  by  Mr.  Hubbell.  I  had  no  objection  to  say  to  Dr. 
Elliott,  that  the  Presbytery  of  Geneva  was  under  the  jurisdiction  of  the 


TESTIMONY  FOR  THE  RELATORS.  71 

Synod  of  Geneva,  but  because  Presbyteries,  as  regards  the  General  As- 
sembly, are  not  under  the  jurisdiction  of  Synods,  It  would,  therefore, 
have  been  irrelevant  to  say  so.  I  came  from  the  Presbytery  of  Geneva. 
I  had  been  preaching  the  winter  of  that  year  in  the  congregation  of  Junius, 
within  the  boundsof  that  Presbytery,  as  a  stated  supply,  as  it  is  termed  on 
the  minutes.  I  was  a  minister  belonging  to  the  Presbyterian  Church. 
The  churches  in  that  Presbytery,  without  exception,  or,  at  least,  as  I 
think,  not  more  than  one,  were  governed  by  ruling  elders.  That  one  ex- 
ception, if  there  were  any,  must  have  been  the  congregation  of  Mid-^ 
dlesex. 

By  Mr.  Ingersoll.  With  regard  to  my  own  Presbytery,  it  is  as  I 
have  stated.  About  the  other  Presbyteries  in  the  Synod  I  cannot  speak 
with  certainty.  I  know  of  none  that  are  strictly  Congregational  churches; 
I  do  not  know  that  all  have  sessions.  If  there  be  any  churches  in  that 
country,  within  the  bounds  of  the  Synod  and  beyond,  which  have  not 
sessions,  they  have,  by  vote,  put  themselves  under  the  care  of  some  Pres- 
bytery. I  believe  the  elders  in  all  those  churches  are  for  life;  I  do  not 
know  that  all  have  elders  chosen  for  life;  but  all  that  I  know  have.  I 
know  of  none  which  have  committee-men.  I  presume  there  are  some 
where  all  questions  are  submitted  to  the  male  members  of  the  church;  I 
have  parol  evidence  that  there  are  such  in  that  region.  In  the  Presbytery 
to  which  I  belong,  all  have  sessions  except  one,  and  for  five  or  six  years 
past,  my  attention  has  been  chiefly  confined  to  that  Presbytery.  Several 
years  ago,  I  belonged  to  the  Presbytery  of  Bufi'alo:  there  were  then  some 
churches  connected  with  that  Presbytery,  that  had  not  appointed  ruling 
elders.  I  am  unable  to  say  how  many.  This  Presbytery  now  belongs  to 
the  Synod  of  Genesee.  They  were  the  fewer  in  number,  and  the  smaller 
churches,  I  should  say.  Churches,  when  first  formed  in  a  new  country, 
are  very  small,  and  have  few  male  members;  hardly  enough  for  the  for- 
mation of  an  eldership;  and  in  some  instances  the  appointment  of  elders 
was  delayed.  In  the  mean  time  such  a  church  was  represented  in  the 
Presbytery.  I  have  no  knowledge  of  changes,  subsequent  to  the  time  of 
which  I  speak,  in  the  Presbytery  of  Buffalo.  It  was  frequently  the  case 
that  these  churches  afterwards  chose  ruling  elders.  I  now  reside  one 
hundred  miles  from  them,  and  therefore  do  not  know  much  about  them. 
Mr.  Ingersoll.  Here  is  page  534  of  the  Minutes  of  1837,  containing 
the  reports  of  the  Presbyteries  of  Onondaga  and  Cayuga.  Please  to  say 
what  churches  there  designated  have,  and  which  have  not,  ruling  elders 
regularly  ordained. 

Mr.  Squier.  I  do  not  know  whether  all  these  have  elders;  all  of  them 
that  I  know  have.  I  know  of  none  which  have  not.  I  am  not  as  much 
acquainted  with  the  churches  of  Onondaga,  as  with  those  of  Cayuga.  I 
do  not  know  the  number  of  churches  in  Onondaga,  but  it  is  rather  large. 
I  am  acquainted  in  Auburn,  and  both  churches  there  have  ruling  elders. 
By  a  rather  large  number  of  churches  I  mean  about  twenty.  I  am  unac- 
quainted, of  my  own  personal  knowledge,  with  the  fact  how  many 
churches  there  are  in  the  Presbytery  of  Onondaga,  which  have  ruling 
elders.  I  have  not  travelled  much  in  Onondaga.  The  seventeen  coun- 
ties in  which  I  travelled,  as  Agent  for  the  Home  Missionary  Society,  did 
not  embrace  that  Presbytery;  they  did  embrace  all  west  of  it.  Some  of 
the  Presbyteries  have*been  formed  since  that  time.     In  1816,  when  I 


72  PRESBYTERIAN  CHURCH  CASE, 

settled  in  BufFalo,  Geneva  was  the  only  Presbytery  in  those  seventeen 
counties.  During  my  agency,  the  following  Presbyteries  were  formed: 
Out  of  Geneva,  in  1817,  were  formed  Ontario,  Niagara  and  Bath;  and  in 
1819,  the  Presbyteries  of  Rochester  and  Genesee  were  created.  All  of 
these  were  formed  by  the  Synod  of  Geneva.  The  geographical  limits  of 
the  Presbyteries  were  at  first  large,  but  were  afterwards  cut  shorter  for 
convenience.  At  a  later  period  the  Presbytery  of  Tioga  was  created,  and 
by  the  same  Synod  of  Geneva.  This  was  in  a  subsequent  year.  Also 
■the  Presbytery  of  Angelica,  by  the  same  Synod.  At  a  later  period,  in 
1821,  the  Synod  of  Genesee  was  formed  by  tlie  General  Assembly,  con- 
taining, I  think,  the  Presbyteries  of  Ontario,  Rochester,  Niagara,  and 
Genesee.  At  a  subsequent  time,  the  Presbytery  of  Niagara  was  divided 
by  the  Synod  of  Genesee:  the  part  north  of  Tonne wanta  Creek,  took  the 
name  of  Niagara,  the  other  that  of  Buffalo,  and  the  latter  retained  the 
papers.  The  Presbytery  of  Chemung  was  subsequently  formed  by  the 
Synod  of  Geneva.  I  cannot  now  think  of  any  more. '  I  do  not  know  that 
any  church  was  ever  represented  in  the  Presbytery  of  Ontario,  by  a  per- 
son not  either  a  minister  or  a  ruling  elder.  I  know  nothing  about  it,  one 
way  or  the  other.  I  do  know  persons,  who,  when  I  was  a  member  of  the 
Presbytery  of  Niagara,  fifteen  years  ago,  were  members  of  that  Presby- 
tery from  churches  that  had  not  yet  organized  sessions.  To  the  best  of 
my  recollection,  there  were  but  a  small  number,  of  such  churches,  and 
these  from  among  the  smaller  and  newer  ones.  Each  church  belonging 
to  a  Presbytery,  has  one  representative.  I  judge  there  were  churches  in 
these  Presbyteries,  which,  in  the  feature  of  not  having  sessions,  were 
Congregational.  I  know  there  is  one  church  which  has  the  reputation  of 
belonging  to  Bath  Presbytery,  which  has  no  ruling  elders — the  church  of 
Prattsburg.  I  do  not  know  that  this  church  was  ever  represented  in 
Presbytery.  I  do  not  know  of  any  such  in  the  Presbytery  of  Rochester. 
I  am  acquainted  with  all  the  principal  churches  in  Rochester,  but  not  with 
all.  To  the  best  of  my  knowledge,  those  churches,  which  have  not  yet 
formed  elderships,  elect  one  from  the  male  members,  to  represent  them 
in  Presbytery.     I  have  never  been  present  at  any  such  election. 

By  Mr.  Hiihbell.  I  know  of  no  church  formed  wholly,  or  partly,  on 
the  accomodation  plan.  There  are,  I  should  think,  between  thirty  and 
forty  churches  in  the  Presbytery  of  Buffalo.  At  the  time  I  was  ac- 
quainted with  it,  seventeen  or  eighteen  years  ago,  there  were  some 
churches  in  that  incipient  state  which  I  have  described.  The  common 
language  in  Presbytery  was,  "  While  you  are  too  young  to  form  elder- 
ships, let  the  male  members  govern  the  church."  I  cannot  say,  that  all 
the  churches  which  were  thus  initiated,  fifteen  years  ago,  have  now  be- 
come consummate.  The  churches  of  Angelica,  I  have  always  under- 
stood, had  sessions ;  I  know  of  none  in  that  Presbytery  that  have  not. 
I  do  not  know,  however,  that  all  have.  I  am  not  sufficiently  acquainted 
with  all  the  churches  in  Rochester  to  know  about  them.  I  do  not  know 
that  all  in  Genesee  have  ruling  elders ;  but  I  know  of  none  that  have  not. 
When  I  belonged,  a  number  of  years  ago,  to  the  Presbytery  of  Niagara, 
I  had  reason  to  suppose  there  were  some  churches  that  had  not  sessions 
in  that  Presbytery.     I  know  of  none  such  in  Rochester. 

Re-examined  by  Mr.  Randall.  The  representation  from  the  Presby- 
tery of  Watertown.     {Minutes  1837,  /;.  528,  referred  to,)  is  always  ac- 


■m 


TESTIMONY  FOR  THE  RELATORS.  73 

cording  to  the  number  of  ministers,  and,  so  far  as  I  know,  always  has 
been  so.  A  minister  without  a  charge,  as,  for  example,  the  president  of 
a  college,  always  counis  one  in  Presbytery.  The  right  to  a  seat  com- 
mences with  his  ordination.  I  know  of  no  individual,  of  the  whole 
number  of  five  hundred  and  nine  ministers,  within  the  bounds  of  the 
four  exscinded  Synods,  who  is  not  a  regularly  ordained  Presbyterian 
clergyman.  All  were  such ;  but  I  must  be  understood  as  meaning,  that 
we  received  clergymen  from  the  Dutch  Reformed  Church,  and  from  the 
Associations  of  New  England,  without  re-ordination  ;  the  terms  of  cor- 
respondence did  not  require  that  they  should  be  re-ordained.  In  all  the 
Presbyteries  with  which  I  am  acquainted,  there  are  a  suiFicient  number 
of  Presbyterian  churches  to  constitute  the  Presbyteries.  Striking  out 
those  churches  not  strictly  Presbyterian,  there  would  have  remained  a 
sufficient  number,  regularly  organized,  to  send  commissioners  to  the 
General  Assembly,  of  1837. 

Mr.  Randall.  We  will  here  interrupt  the  witness,  to  offer  these  com- 
missions of  the  delegates  from  the  exscinded  Synods  to  the  General  As- 
sembly of  1838. 

The  commissions  were  then  given  in  evidence. 

Mr.  Squier,  in  continuation — examined  by  Mr.  Randall.  I  was 
present  at  the  organization  of  the  Assembly  of  1838.  After  tendering 
the  commissions  to  the  clerks,  I  presented  them  for  keeping  to  a  gentle- 
man named  Mr.  Nixon.  I  introduced  him  to  Dr.  Mason,  and  then  went 
into  the  house.  1  found  the  house  previously  occupied,  very  densely,  at 
the  south  end,  a  large  proportion  of  the  gentlemen  in  that  part  of  it  being 
of  the  Old-school  party.  The  sermon  was  preached  as  usual,  and  at  its 
close  the  Moderator,  Dr.  Elliott,  announced  that  after  prayer  he  would 
proceed  to  constitute  the  Assembly.  This  prayer  being  finished,  he  took 
his  place  below,  in  front  of  tlie  pulpit,  and  made  a  prayer,  at  the  close  of 
which  Dr.  Patton  rose,  saying  that  he  held  in  his  hand  certain  resolutions 
which  he  wished  to  offer.  Dr.  Elliott  said,  that  was  not  the  time  to  hear 
them;  that  the  next  business  was  the  formation  of  the  roll,  or  something 
to  that  effect.  Dr.  Patton  replied  that  his  resolutions  had  regard  to  that 
very  subject.  Dr.  Elliott  stated,  that  they  could  not  be  received,  as  the 
roll  was  the  next  thing  in  the  order  of  business ;  and  I  think  mentioned, 
that  the  clerks  were  ready  to  make  their  report.  Dr.  Patton  informed 
him,  that  he  had  the  floor  before  the  clerks.  The  Moderator  told  him  he 
was  out  of  order.  Dr.  Patton  appealed  from  his  decision,  and  his  appeal 
was  seconded,  to  the  best  of  my  recollection.  The  Moderator  refused  to 
put  the  appeal  to  the  house,  saying  to  Dr.  Patton  that  he  was  out  of  or- 
der. Dr.  Patton  then  took  his  seat,  and  the  clerks  made  their  report.  As 
soon  as  they  had  reported,  the  Moderator  said,  if  there  were  any  more 
commissions,  then  was  the  time  to  have  them  presented.  Dr.  Erskine 
Mason  then  arose,  and  addressed  the  JNIoderator,  saying  that  he  held  in 
his  hand  the  commissions  of  certain  commissioners  from  the  Presbyteries 
within  the  bounds  of  the  Synods  of  Utica,  Geneva,  Genesee,  and  Western 
Reserve,  which  had  been  refused  by  the  clerks;  that  he  now  tendered 
them,  (holding  them  up  to  view,)  for  the  purpose  of  completing  the  roll. 
The  Moderator  inquired  of  him  if  those  Presbyteries  were  within  these 
four  Synods.  He  answered  they  were.  The  Moderator  replied  that  they 
could  not  be  received,  oi*"in  words  to  that  effect.     Dr.   Mason  then  ap- 

10 


74  PRESBYTERIAN  CHURCH  CASE. 

pealed  from  the  decision  of  the  Moderator  to  the  house,  and  his  appeal 
was  seconded.  The  Moderator  refused  to  put  the  appeal,  declaring  him 
out  of  order.  I  then  rose,  and  mentioned  to  the  Moderator,  that  my  com- 
mission had  been  tendered  to  the  clerks,  and  had  been  refused;  and  I  now- 
demanded  my  seat,  and  that  my  name  should  be  enrolled  among  the  mem- 
bers. The  Moderator  asked  what  Presbytery  I  represented.  I  replied 
the  Presbytery  of  Geneva.  The  Moderator  asked  if  that  Presbytery  be- 
longed to  the  Synod  of  Geneva.  I  answered  that  it  was  within  the  bounds 
of  the  Synod  of  Geneva.  He  replied,  "  We  do  not  know  you,"  Mr. 
Cleaveland  of  Detroit  then  rose,  and  said  in  substance,  that  we  had  been 
advised,  that  a  constitutional  Assembly  must  be  organized  at  that  time 
and  place,  by  the  admission  of  all  to  their  seats,  and  as  it  was  evident  that 
this  could  not  be  done  under  these  officers,  or  as  it  was  impossible  to  go 
on,  and  constitute  or  organize  the  Assembly  under  them,  he  moved  that 
Dr.  Beman  take  the  chair,  which  motion  was  seconded,  and  put  by  Mr. 
Cleaveland.  Dr.  Beman  rose  immediately  after  the  question  had  been 
put  and  carried,  by  what  I  should  think  a  nearly  unanimous  vote.  He 
was  sitting  near  the  front  of  the  slip.  A  motion  was  then  made  and  se- 
conded, and  put  by  Dr.  Beman,  that  Dr.  Erskine  Mason  and  Mr.  Gilbert 
be  clerks,  and  Dr.  Beman  then  called  for  nominations  for  a  Moderator  of 
the  Assembly.  Whereupon  Dr.  Fisher  was  nominated,  and  the  nomina- 
tion being  seconded,  and  none  other  made,  the  question  was  put  viva  voce, 
by  calling  the  ayes  and  nays.  Dr.  Beman  then  announced  to  Dr.  Fisher, 
that  he  was  regularly  constituted  Moderator  of  the  General  Assembly, 
and  should  be  governed  by  the  rules  of  that  body  thereafter  to  be  made. 
The  Rev.  Dr.  Mason  was  then  nominated  as  Stated  Clerk,  and  Mr.  Gil- 
bert as  Permanent  Clerk,  and  the  question  was  put  by  Dr.  Fisher  and 
carried.  Some  paper  was  then  read  or  referred  to,  the  purport  of  which 
I  did  not  understand,  and  on  the  back  of  this,  a  motion  was  made  to  ad- 
journ to  the  First  Presbyterian  Church.  The  paper  was  on  the  subject 
of  the  occupation  of  the  house.  1  cannot  state  by  whom  it  was  read,  but 
to  the  best  of  my  recollection,  it  was  by  Dr.  Beman.  The  body  then  re- 
tired to  the  lecture-room  of  the  First  Presbyterian  Church,  the  Moderator 
announcing  that  if  there  were  any  other  commissions,  which  had  not  yet 
been  presented,  they  would  be  received  there.  After  getting  to  the  lec- 
ture-room of  the  First  Church,  the  business  went  on  as  usual. 

The  motions  in  the  Seventh  Church,  were  I  think,  all  made  in  an  audi- 
ble voice,  and  all  seconded;  and  the  question  on  each  was  put  by  the 
chair.  An  opportunity  was  given  to  vote  in  the  negative,  it  being,  to  the 
best  of  my  recollection,  in  each  instance  put,  and  a  competent  time  being 
allowed  to  vote.  So  far  as  I  could  perceive,  the  business  had  the  attention 
of  the  whole  house.  The  house  was  very  still,  especially  at  the  time 
when  I  was  on  the  floor.  Every  member  had  an  opportunity  of  voting 
on  these  resolutions.  There  was  a  call  to  order,  by  the  Moderator,  of 
Dr.  Patton,  who,  when  last  called  to  order,  took  his  seat.  There  were, 
if  I  recollect,  some  cries  of  order  when  he  and  Dr.  Mason  were  on  the 
floor.  There  was  no  interruption  when  I  had  the  floor,  but  more  when 
Mr.  Cleaveland  was  on  it,  from  Dr.  Elliott  and  those  sitting  in  that  por- 
tion of  the  house.  The  noise  and  interruption  came  from  the  part  of  the 
house  which  was  filled  when  we  went  in,  by  those  who  acted  on  the  Old- 
school  side.     I  cannot  say  that  they  were  all  Old-school  men,  but  many  I 


TESTIMONY  FOR  THE  RELATORS. 


75 


knew  to  be  so.  I  did  not  enter  the  house  till  eleven  o'clock;  then  it  was 
occupied  by  a  dense  mass,  nearly  one  third  of  the  way  from  the  pulpit. 
There  was  a  universal  rumour,  that  a  meeting  for  consultation  had  been 
held  in  the  church  previously  to  this  time.  I  have  been  a  commissioner 
since  the  year  1817,  about  every  four  years.  I  have  never  before  seen 
such  a  collection  of  persons  at  that  hour.  I  entered  the  house  previously 
to  the  commencement  of  the  preparatory  exercises.  The  members  did 
not  change  their  places  afterwards.  The  Assembly  is  always  opened 
with  a  sermon  by  the  old  Moderator,  who  presides  until  a  new  one  is 
chosen.  The  practice,  to  the  best  of  my  recollection,  formerly  was,  to 
I'ead  the  commissions  before  all  the  members.  The  late  practice,  for  con- 
venience, has. been,  to  commit  them  to  the  Stated  and  Permanent  Clerks. 
My  recollection  is  not  distinct  as  to  the  subject  of  discussing  the  right  to 
seats — whether  it  is  done  before,  or  after  the  choice  of  a  Moderator. 

No  cross-examination. 

Dr.  William  Hill — sworn.  I  belong  at  present  to  the  Presbytery  of 
the  District  of  Columbia,  although  my  residence,  for  some  months  past, 
has  been  at  Winchester,  Virginia.  I  have  been  a  member  of  the  Presby- 
terian Church  since  1787.  I  have  repeatedly  been  a  commissioner  to  the 
General  Assembly;  once  soon  after  the  Assembly  was  organized,  and 
since,  I  cannot  recollect  how  often,  but  more  frequently  than  any  other 
person  from  the  state  of  Virginia.  I  have  filled  the  office  of  Moderator. 
It  was  the  custom,  at  the  time  of  my  first  acquaintance  with  the  Assem- 
bly, for  the  commissions  to  be  brought  into  the  house,  and  read  there. 
The  Constitution  says  merely  that  they  shall  be  read,  but  as  to  the  points 
where,  when,  and  before  whom,  this  shall  be  done,  it  is  silent.  The  cus- 
tom, for  a  number  of  years  was,  for  commissioners,  as  soon  as  the  sermon 
was  done,  to  present  themselves  at  the  clerks'  table,  and  their  commis- 
sions were  read  one  after  another,  as  fast  as  possible,  and  their  names  put 
on  the  roll.  All  the  doubtful  commissions  were  laid  aside,  to  be  acted 
upon  at  a  subsequent  period.  Where  nothing  doubtful  appeared,  the 
names  were  put  upon  the  roll  immediately.  If  I  recollect  aright,  the 
doubtful  commissions  were  at  first  discussed  before  the  house;  but  this 
was  found  too  tedious,  and  a  Committee  of  Elections  or  Commissions  was 
appointed,  to  examine  them  and  make  report  as  soon  as  possible.  Some- 
times persons  appeared  without  their  commissions,  which  perhaps  had 
been  lost,  or  had  miscarried.  These  cases  were  referred  to  the  same 
committee  to  be  reported  upon.  I  believe  the  common  practice  was,  to 
defer  acting  on  these  doubtful  commissions,  until  after  the  Moderator  was 
chosen.  Those  members  about  whom  there  was  no  dispute  were  per- 
mitted to  vote  for  Moderator.  When  the  Assembly,  in  process  of  time, 
became  so  large  that  reading  the  commissions,  in  extenso,  consumed  a 
great  while,  this  was  dispensed  with,  and  the  names  merely  of  each  com- 
missioner, and  of  the  Presbytery  from  which  he  came,  were  announced. 
If  any  commission  was  doubtful,  or  was  called  in  question,  it  was  always 
laid  aside  for  subsequent  consideration.  This  continued  the  practice,  until 
thirteen  years  ago,  when  the  custom  arose  of  referring  all  the  commissions 
to  the  clerks,  in  order  to  facilitate  business;  and  they  having  previously 
examined  them,  reported  the  roll  to  the  house.  The  Constitution  says 
nothing  on  the  subject.  Business  progressed  in  this  way  comfortably  and 
harmoniously,  until  these,  times  of  excitement  came.     Then  this  plan  was 


I 


^Q  PRESBYTERIAN  CHURCH  CASE.  , 

found  to  operate  unfavourabl)^,  and  a  desire  was  manifested  to  revert  to 
the  old  custom,  especially  when,  in  1837,  pledges  were  exacted  from  the 
clerks.  It  was  my  intention,  last  spring,  to  move  the  Assembly  to  return 
to  the  old  order,  as  less  objectionable,  and  less  liable  to  abuse. 

I  Was  a  member  of  the  Assembly  of  1835,  which  met  in  Pittsburgh. 
It  was  a  pretty  tedious  process  to  get  into  our  gear  on  that  occasion,  and  I 
believe  near  two  days  were  spent  before  the  choice  of  a  Moderator.  The 
Moderator  of  the  last  year  was  not  present.  The  Constitution  says  that 
the  last  Moderator  present  shall  preside  until  a  new  one  shall  be  chosen. 
The  Moderator  had  written  to  Dr.  Miller,  requesting  him  to  preach  the 
sermon,  and  preside  in  his  place.  After  the  sermon,  there  was  an  objec- 
tion to  Dr.  Miller's  taking  the  chair,  and  Dr.  Beman  presided  a  consi- 
derable time;  but  an  objection  being  again  made,  the  office  devolved  on 
Dr.  William  A.  McDowell,  I  believe  by  a  vote  of  the  house,  but  I  am  not 
certain  whether  by  a  vote,  or  by  consent.  Dr.  Beman  occupied  the  chair 
some  time  before  his  right  was  called  in  question.  I  think  I  recollect 
repeated  instances,  in  former  years,  under  the  previous  order,  of  disputed 
rights  to  seats  being  determined  before  the  choice  of  a  new  Moderator. 

Cross-examined  by  Mr.  Hubbell.  On  the  occasion  mentioned.  Dr. 
Beman's  right  was  disputed  because  he  was  not  the  last  Moderator  pre- 
sent. Dr.  McDowell,  the  last  one  present,  was  in  very  feeble  health,  and 
it  was  to  accommodate  his  feelings  that  Dr.  Beman  was  put  into  the  chair. 
The  universal  rule  is,  that  the  last  Moderator  present  is  entitled  ta  the 
chair.  I  do  not  know  whether  Dr.  Beman  put  the  question  on  the  sub- 
ject of  his  removal:  L  think  he  did,  but  am  not  certain.  If  I  recollect 
Dr.  Beman  took  no  part  in  the  discussions  of  the  house.  He  left  the 
chair,  in  obedience  to  its  order,  as  soon  as  the  decision  had  been  made. 

Re-examined  by  Mr.  Randall.  I  think  the  objection  on  which  the 
moot  point  arose  was,  that  Dr.  McDowell  was  not  a  commissioner  to  that 
Assembly. 

By  Mr.  Ingersoll.  It  is  not  necessary  to  be  a  commissioner  to  preach 
the  sermon.     On  this  occasion  Dr.  Miller  preached  it. 

Mr.  Randall  next  offered  various  extracts  from  the  minutes. 

Min.  1823,  pp.  Ill,  112,  113,  "  "^he  General  Assembly  of  the  Presbyterian  Church 
in  the  United  States  of  America,  met,  agreeably  to  appointment,  in  the  Seventh  Pres- 
byterian church  in  the  city  of  Philadelphia,  May  15th,  1823,  at  11  o'clock,  A.  M.,  and 
was  opened  by  thy  Rev.  Obadiah  Jennings,  the  Moderator  of  the  last  Assembly,  with  a 
sermon,  &c.  *  *  *  *  *  *     .  *. 

"  After  prayer  the  commissions  were  read,  and  it  appeared  that  the  following  minis- 
ters and  elders  v/ere  duly  appointed,  and  attended  as  commissioners  to  this  Assem- 
bly, viz." 

[Here  follows  the  roll  of  the  Assembly.] 

"The  Rev.  John  McFarland  of  the  Presbytery  of  Ebenezer,  Dr.  Cyrus  Baldwin, 
ruling  elder  from  the  Presbytery  of  Onondaga,  and  Mr.  Samuel  Blood,  ruling  elder  from 
the  Presbytery  of  Carlisle,  appeared  in  the  Assembly  without  commissions;  but  suffi- 
cient testimony  was  given  that  they  had  been  chosen  commissioners  to  this  Assembly, 
and  they  were  received  as  members  and  took  their  seats  accordingly. 

"The  Assembly  proceeded  to  elect  a  Moderator  and  Temporary  Clerk;  and  the  Rev. 
John  Chester,  D.  D.  was  chosen  Moderator,  and  the  Rev.  Robert  Cathcart,  D.  D.  was 
chosen  Temporary  Clerk. 

Min.  1824,  pp.  193—5.    Min.  1825,  pp.  249—251.    Min.  1829,  pp.  363—6. 

Min.  1831,  pp.  155-8.  "  The  General  Assembly  of  the  Presbyterian  Church  in  the 
United  Stales  of  America,  met,  &,c. 


TESTIMONY  FOR  THE  RELATORS. 

"The  Standing  ComnniUee  of  Commissions  reported,  that  the  following  persons 
present  have  been  duly  appointed  commissioners  to  this  General  Assembly,  viz:" 

[Then  follows  the  roll,  as  before.] 

"The  committee  further  reported,  four  commissions  from  the  Presbytery  of  New- 
Brunswick,  two  from  Watertovvn,  one  from  New  Castle,  and  one  from  Northumber- 
land, as  wanting  the  date  of  the  year  of  the  appointment;  also,  one  commission  from 
New  Castle,  and  one  from  Rochester,  as  wanting  the  signature  of  the  Moderator ;  and 
a  commission  from  Grand  River,  for  a  member  of  the  Standing  Committee,  instead  of 
a  ruling  elder.  The  committee  also  reported,  that  the  Rev.  John  McCrea,  of  the  Pres- 
bytery of  Cleveland,  had  informed  them  that  he  had  lost  his  commission. 

"Mr.  Jacob  Green,  Mr.  Patton,  and  Mr.  A.  Piatt,  were  appointed  a  Committee  of 
Elections,  and  the  informal  commissions  were  referred  to  them. 

"The  Assembly  had  a  recess  until  four  o'clock  this  afternoon. 
,    "  Thursday^  four  o'clock,  P.  M. — After  recess  the  Assembly  met. 

"  The  Committee  of  Elections  reported,  that  they  had  received  satisfactory  evidence 
of  the  regular  appointment  as  commissioners  of  the  persons  whose  commissions  had 
been  referred  to  them.  With  respect  to  the  case  of  the  Standing  Committee-man  from 
Grand  River  Presbytery,  they  decline  expressing  any  opinion  as  to  the  constitutional 
question  of  the  right  of  such  to  a  seat  in  the  Assembly. 

"The  Assembly  proceeded  to  consider  the  case  of  the  persons  denominated  '  Standing 
Committee,'  in  the  commission;  and,  after  considerable  discussion,  it  was  resolved  that 
the  member  be  received,  and  enrolled  among  the  list  of  members. 

"The  Assembly  proceeded  to  the  election  of  a  Moderator,  when  the  Rev.  Nathan  SJ 
"S.  Beman,  D.  D.,  was  elected." 

Min.  1833,  pp.  469-73. 

[The  passages  here  simply  referred  to  are  of  the  same  nature  with 
those  quoted,  going  to  show  that  it  is  customary,  in  the  Assembly,  to  try 
doubtful  or  disputed  rights  of  membership,  before  the  choice  of  a  new 
Moderator.  ] 

Court  adjourned. 

SATURDAY  MORNING,  March  9th— 10  o'clock. 

Mr.  Randall.  I  have  examined  Dr.  Patton  and  Mr.  Squier  out  of  the 
regular  order  of  the  testimony,  but  shall  endeavor  to  be  more  methodical 
hereafter.  The  last  evidence  offered  yesterday  was  in  regard  to  the  prac- 
tice of  deciding  the  right  to  disputed  seats  before  the  election  of  the  new 
Moderator.  I  now  give  some  farther  extracts  from  the  minutes,  relating 
to  the  same  point. 

Min.  1826,  p.  6.  "  Mr.  Josiah  Bissell,  from  the  Presbytery  of  Rochester,  appeared 
in  the  Assembly,  and  produced  a  commission,  as  an  elder  from  that  Presbytery.  A 
member  of  that  Presbytery  informed  the  Assembly  that  Mr.  Bissell  had  not  been  set 
apart  as  an  elder ;  but  that  he  was  appointed,  as  was  supposed  by  the  Presbytery,  in 
conformity  with  the  conventional  agreement,  between  the  General  Assembly  and  the 
General  Association  of  Connecticut.  After  some  discussion,  the  Assembly  adjourned 
till  nine  o'clock  to-morrow  morning. 

"  May  19</i,*  *  The  Assembly  resumed  the  consideration  of  the  commission  of 
Mr,  Bissell;  and,  after  considerable  discussion,  it  was  resolved,  that  Mr.  Bissell  be  ad- 
mitted as  a  member  of  the  Assembly. 

"The  Rev.  Thomas  McAuley,  D.  D.,  was  chosen  Moderator;  and  the  Rev.  John 
Chester,  D.  D.,  and  the  Rev.  Samuel  T.  Mills,  were  chosen  temporary  clerks." 

M7\  Randall.  There  seems  to  have  been  complete  unanimity  in  re- 
gard to  Mr.  Bissell's  case.  It  was  not  considered  as  involving  any  im- 
portant constitutional  question,  and  even  the  yeas  and  nays  were  not 
called  for. 

Mr.  Hubbell.     The  counsel,  I  think,  is  mistaken  in  regard  to  the 


^g  PRESBYTERIAN  CHURCH  CASE. 

unanimity  of  the  house.  There  was  a  formal  protest  in  Mr.  Bissell's 
ease. 

Mr.  Randall.  Yes,  here  is  a  protest,  signed  by  forty-two  members. 
It  had  escaped  my  notice,  from  having  been  made  at  a  subsequent  time. 
I  will  read  it. 

Mm.  1826,  'p.  23.     *'  Protest  against  the  admission  of  Mr.  Bissell. 

•'  1.  Because  he  was  neither  an  ordained  minister,  nor  a  ruling  elder. 

"2.  Because  he  was  not  even  a  committee-man,  on  which  ground  some  might  have 
been  disposed  to  advocate  his  admission. 

"3.  Because  he  had  not,  either  from  the  Constitution  or  from  the  Conventional 
Agreement,  the  shadow  of  a  claim  to  a  seal." 

Mr.  Randall.  The  ground  of  the  protest,  as  you  see,  was  not  the 
time  when  the  decision,  as  to  the  disputed  seat,  took  place — its  being  de- 
cided before  the  choice  of  the  new  Moderator.  All  seem  to  have  agreed, 
that  that  was  the  legitimate  and  only  proper  time. 

Min.  18.34,  fp.  3-7. 

Min.  1835,  p;j.  3-7.  "The  General  Assembly  of  the  Presbyterian  Church  met  in  the 
First  Presbyterian  church  in  this  city,  and  the  Rev.  Dr.  Lindsley,  the  Moderator  of  the 
last  Assembly  being  absent,  was  opened  with  a  sermon  by  the  Rev.  Samuel  Miller,  D.D., 
at  the  request  of  the  Rev.  Dr.  William  A.  McDowell,  the  last  Moderator  present.  *  *  * 
After  sermon,  the  Stated  Clerk  called  the  house  to  order,  and  informed  them,  that  the 
Rev.  Dr.  Lindsley,  the  Moderator  of  the  last  Assembly  being  absent,  the  duties  of  the 
chair  devolved  upon  the  last  Moderator,  who  is  present,  and  has  a  commission  to  sit  in 
this  Assembly ;  and  therefore,  he  moved  that  the  Rev.  Nathan  S.  S.  Beman,  D.  D.,  be 
called  to  the  chair.  This  motion  prevailed,  and  Dr.  Beman  look  the  chair,  and  con- 
stituted the  Assembly  with  prayer." 

[Then  follows  the  report  of  the  clerks  upon  the  roll,  and  their  report 
of  irregular  commissions.] 

"  The  Assembly  had  a  recess  until  three  o'clock  this  afternoon. 

"  Thursday  afternoon,  three  o'clock. — The  Assembly  met.  A  motion  was  made  to 
re-consider  the  vote  by  which  Dr.  Beman  was  called  to  the  chair,  on  the  ground,  that 
many  persons  voted  in  the  apprehension  that  Dr.  William  A.  McDowell,  the  Moderator 
immediately  preceding  Dr.  Lindsley,  was  not  in  the  house;  and  that  many  others  be- 
lieved the  rule  of  the  house  required  the  constituting  Moderator  to  be  in  commission, 
which  Dr.  McDowell  was  not.  This  motion,  after  considerable  discussion,  was  adopted 
unanimously. 

"  After  some  further  remarks,  it  was  agreed  that  the  original  motion  of  the  Stated 
Clerk  should  be  again  submitted  to  the  house,  and  the  vote  be  taken  by  him.  Where- 
upon Dr.  Ely  put  the  question : 

"  'All  who  are  in  favor  of  sustaining  the  resolution  passed  in  the  morning,  by  which 
Dr.  Beman  was  called  to  the  chair,  will  signify  it  by  saying.  Aye.' 

"This  motion  was  lost. 

"  It  was  then  moved  that  the  Rev.  William  A.  McDowell,  D.  D.,  being  the  last 
Moderator  present,  be  requested  to  take  the  chair.  This  motion  prevailed,  and  Dr. 
McDowell  took  the  chair  accordingly." 

[Then  followed  the  appointment  of  a  Committee  of  Elections,  and 
their  report,  which  was  accepted;  and  after  this  the  Assembly  proceeded 
to  the  choice  of  a  Moderator  and  Temporary  Clerk.] 

Min.  1836,  pTp.  23.5-9.    Min.  1837,  pp.  411-15. 

[The  minutes  referred  to,  go  to  establish  the  same  point  as  those 
quoted — the  practice  of  deciding  in  regard  to  disputed  seats  before  the 
choice  of  a  Moderator.] 

Dr.  Robert  Cathcart — sworn.  I  have  been  a  minister  of  the  Pres- 
byterian Church  in  the  United  States  near  forty-seven  years.  I  cannot 
tell,  exactly,  the  number  of  years  1  have  attended  the  meetings  of  the 


TESTIMONY  FOR  THE  RELATORS.  79 

General  Assembly,  but  may  safely  say  that,  as  spectator  or  member,  I 
have  attended  forty  years.  From  thirty  to  forty  times  I  have  been  a 
commissioner.  I  occupied  the  place  of  clerk  of  the  Assembly,  from  fifteen 
to  twenty  years.  At  that  time  there  were  no  such  officers  as  Permanent 
and  Stated  Clerks.  Our  constitution  recognises  no  such  officers.  All  that 
it  recognises  is,  a  clerk  of  the  Assembly,  and  his  duties  are  very  simple. 
At  an  early  period,  either  the  clerk  of  the  last  Assembly,  or  one  nomi- 
nated for  the  occasion,  sat  down,  and  served  until  the  Assembly  was  con- 
stituted. All  the  commissions  were  brought  forward  and  put  upon  the 
table,  and  the  clerk  read  them  at  full  length.  After  some  years,  when  the 
number  of  commissioners  had  increased,  this  method  was  found  inconve- 
nient, and  then  it  became  customary  to  read  only  the  most  essential  parts 
oT  each  commission,  as,  the  name  of  the  commissioner,  and  of  his  Pres- 
bytery, and  the  signature  of  the  Moderator.  At  this  time  there  were  so 
few  disputed  or  defective  commissions,  that  such  matters  were  usually 
settled  at  the  clerk's  table.  Afterwards,  when  the  number  increased, 
another  plan  was  adopted. — Such  commissions  were  laid  aside,  till  those 
about  which  there  was  no  difficulty  had  been  read.  A  Committee  on 
Commissions  was  then  appointed,  and  into  the  hands  of  that  committee 
Avent  all  the  doubtful  cases.  Then  a  recess  was  usually  allowed  for  din- 
ner, and,  after  the  interval,  the  committee  returned  the  names  of  those 
whom  they  thought  duly  elected.  These  were  usually  received  from  the 
report  of  the  committiee,  and  no  vote  passed  upon  them  by  the  Assembly. 
Then  the  Moderator  announced,  that  if  any  commissioners  had  entered 
the  house  in  the  interim,  they  should  come  forward  and  present  their 
commissions.  After  this  they  proceeded  to  choose  a  Moderator  and 
clerks.  Since  the  year  1S02  the  Permanent  Clerk  has  continued  in  office 
until  a  new  one  was  appointed.  The  report  of  the  committee  was  re- 
ceived ex  officio,  without  any  vote.  They  settled  who  were  members; 
and  those  thus  reported  were  put  on  the  roll.  It  was  never  supposed 
that  the  clerks  had  a  right  to  reject  any  commissions.  The  Assembly  is 
entirely  disconnected  from  any  officers;  if  the  Moderator  and  clerks 
should  all  die,  the  body  would  still  exist. 

Cross-examined  by  Mr.  Huhhell.  Of  late,  since  it  has  been  found 
that  so  much  time  was  consumed  in  reading  the  commissions  at  the  table, 
it  has  been  the  practice  for  the  clerks  to  attend  in  the  morning,  before 
eleven  o'clock,  to  receive  commissions.  Then  they  have  reported  upon 
them  according  to  circumstances.  They  are  called  a  Committee  of  Com- 
missions, or  Elections,  I  forget  which.  It  is  their  business  to  examine  the 
commissions,  and  see  whether  they  are  regular.  Sometimes  they  find  de- 
fects, as  the  want  of  a  signature.  Sometimes  commissions  have  been  lost, 
or  forgotten.  They  have  always  reported  according  to  circumstances. 
The  irregular,  or  doubtful  cases  then  go  into  the  hands  of  a  Committee  of 
Elections. 

Rev.  Eliphalet  Gilbert — sworn.  I  belong  to  the  Presbytery  of  Wil- 
mington, in  the  State  of  Delaware.  I  was  a  commissioner  to  the  General 
Assembly  of  1837,  and  also  to  that  of  1838.  I  went  to  the  church  in  Ran- 
stead  Court,  on  the  day  of  the  organization  of  the  latter  Assembly,  about 
half  past  ten  o'clock,  and  found  the  seats  around,  and  in  front  of  the  Mo- 
derator's chair  occupied  by  the  brethren  of  the  Old-school  party  as  they 
are  usually  called.     I  'then  stepped  round  into  the  lobby,  and  handed  my 


80 


PRESBYTERIAN  CHURCH  CASE. 


commission  to  the  Committee  of  Commissions.  As  I  was  passing,  I  heard 
Dr.  McDowell  say,  "  Where  is  the  sexton?  These  doors  ought  to  be 
locked."  As  I  had  been  present  at  many  Assemblies,  and  had  never 
known  them  locked,  I  was  surprised  at  hearing  this.  Soon  after  the  doors 
were  locked.  Then  I  went  round  and  took  my  seat  in  the  house  on  the 
east  aisle,  as  near  to  the  front  as  I  could  get.  After  the  sermon  was  over, 
and  the  introductory  prayer  concluded.  Dr.  Patton  rose,  and  said,  "I  hold 
in  my  hand,  certain  resolutions,  which  I  desire  to  present  to  the  house." 
The  Moderator  declared  him  out  of  order,  saying  that  the  first  business 
was  the  report  of  the  clerks  upon  the  roll.  Dr.  Patton  replied,  that  his 
resolutions  bore  upon  the  formation  of  the  roll,  and  that  he  desired  they 
might  be  presented,  and  acted  upon  without  debate.  The  Moderator  re- 
plied again,  that  they  were  out  of  order;  that  the  clerk  had  the  floor.  Dr. 
Patton  said,  that  he  had  had  the  floor  before  the  clerks.  Again,  the  Mo- 
derator pronounced  him  out  of  order.  Dr.  Patton  appealed  from  his  de- 
cision to  the  house,  and  his  appeal  was  seconded  by  at  least  a  dozen  voices. 
I  seconded  it,  and  so  did  all  who  sat  around  me.  The  Moderator  de- 
clared that  the  appeal  was  out  of  order,  refused  to  put  it  to  the  house,  and 
ordered  the  clerks  to  proceed  with  the  roll.  Mr.  Krebs  then  read  the 
roll,  omitting  the  names  of  all  the  commissioners,  from  twenty-nine  Pres- 
byteries, viz:  the  twenty-eight  belonging  to  the  four  exscinded  Synods, 
and  the  Third  Presbytery  of  Philadelphia.  After  the  roll  was  concluded, 
the  Moderator  said,  according  to  the  usual  form,  that  if  there  were  any 
other  commissions,  from  any  part  of  the  Presbyterian  Church,  they  should 
then  be  presented.  Dr.  Mason,  of  New  York,  then  rose,  with  a  bundle 
of  papers  in  his  hand,  and  said,  "  Mr.  Moderator,  I  hold  in  my  hand  the 
commissions  of  a  large  number  of  commissioners,  which  have  been  re- 
jected by  the  clerks:  I  now  tender  them  to  the  house,  and  move  that  their 
names  be  added  to  the  roll."  This  motion  was  seconded  by  many 
voices.  The  Moderator  asked  whether  these  commissions  were  from  Pres- 
byteries in  the  Presbyterian  Church,  at  the  close  of  the  General  Assembly 
of  1837.  Dr.  Mason  answered,  that  they  were  from  Presbyteries  belong- 
ing to  the  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Reserve. 
The  Moderator  replied,  "  We  cannot  receive  them."  Dr.  Mason  then 
said,  "  I  do  most  respectfully  appeal  from  your  decision  to  the  house."  1 
should  have  said,  that  he  had  already  been  declared  out  of  order.  His  ap- 
peal was  seconded  by  many  voices.  The  Moderator  declared  him  out  of 
order,  and  refused  to  put  the  appeal.  The  Rev.  Miles  P.  Squier,  then  rose 
in  his  place,  and  said,  that  he  had  been  regularly  commissioned  from  the 
Presbytery  of  Geneva,  that  he  had  handed  his  commission  to  the  clerks, 
and  that  they  had  refused  to  receive  it;  that  he  now  tendered  it  to  the  As- 
sembly, and  demanded  his  seat  upon  that  floor.  The  Moderator  asked 
whether  the  Presbytery  of  Geneva  belonged  to  the  Synod  of  Geneva. 
Mr.  Squier  replied,  that  it  was  within  the  bounds  of  the  Synod  of  Geneva. 
The  Moderator  said,  "We  do  not  know  you,"  and  Mr.  Squier  sat  down. 
Here  the  Rev.  John  P.  Cleaveland  rose,  and  after  a  few  remarks,  moved  a 
change  of  officers.  He  said,  that  it  was  evident,  from  the  refusal  of  the 
Moderator  and  clerks  to  do  their  duty,  that  a  constitutional  organization 
of  the  Assembly,  could  not,  under  those  circumstances,  be  effected;  that 
we  had  been  advised  by  men  learned  in  the  law,  that  the  organization 
must  take  place  at  that  time,  and  in  that  house;  and  he  moved  a  change  of 


TESTIMONY  FOR  THE  RELATORS.  §J[ 

Moderator,  and  nominated  Dr.  N.  S.  S.  Beman  to  preside  until  a  new  one 
should  be  chosen.  This  motion  was  seconded,  and  Mr.  Cleaveland  put  it, 
saying,  "All  those  who  are  in  favour  of  the  motion,  will  please  to  say, 
aye."  There  was  a  loud  and  general  "  Aye!"  Then  he  said,  "  All  who 
are  against  it  will  say,  no,"  and  I  heard  some  murmuring,  but  not  one 
loud  distinct  "No!"  I  understood  the  object  of  the  motion  to  be  to  re- 
move Dr.  Elliott,  and  substitute  Dr.  Beman  in  his  place.  Those  around 
me  voted  with  the  same  understanding.  Mr.  Cleaveland  declared  that 
the  motion  was  carried,  and  requested  Dr.  Beman  to  take  the  chair.  Dr. 
,  Beman  stepped  out  into  the  aisle  and  took  the  chair.  Then  Dr.  Mason 
and  myself  were  nominated  clerks, /^ro  tern.,  and  the  motion  was  put  and 
carried.  After  my  own  election,  I  left  my  previous  seat,  on  the  eastern 
aisle,  and  passed  round  near  where  Mr.  Krebs  and  Dr.  McDowell  sat,  and 
walked  down  the  broad  aisle,  to  where  Dr.  Beman  stood,  that  I  might  be 
ready  to  call  the  roll,  which  I  held  in  my  hand,  if  necessary.  While  I 
was  thus  passing  down  the  aisle,  Dr.  Beman  called  for  nominations  for 
Moderator  of  the  Assembly  of  1S3S,  Professor  Dickinson  from  Cincin- 
nati, nominated  Dr.  Fisher,  and  the  nomination  was  seconded.  Dr.  Be- 
man asked,  if  there  were  any  other  nominations,  but  none  were  made:  the 
roll  therefore,  was  not  called,  but  the  question  was  decided  viva  voce.  Dr. 
Beman  said,  "All  who  are  in  favour  of  Dr.  Fisher's  being  the  Moderator, 
will  say,  aye,"  and  there  was  a  general  "Aye!"  Then  "  All  who  are 
against  it  will  please  to  say,  no,"  and  I  heard  several  loud  noes.  The 
usage  of  the  Assembly  is,  when  only  one  person  is  nominated,  to  decide 
the  question  viva  voce,  and  when  there  are  two  nominations  to  call  the 
roll.  1  have  known  such  a  question  to  be  determined  viva  voce,  in  a 
number  of  instances.  Dr.  Beman  declared  the  motion  to  be  carried,  and 
introduced  Dr.  Fisher  to  his  place:  he  had  no  chair,  but  merely  stepped 
aside.  He  reminded  Dr.  Fisher,  that  he  was  to  be  governed  by  the  rules 
thereafter  adopted  by  the  Assembly.  It  is  usual  for  each  Assembly  to 
adopt  rules  for  itself,  which  are  commonly  those  to  be  foimd  in  the  ap- 
pendix to  the  Constitution  of  the  Church.  Dr.  Fisher  then  called  for 
nominations  for  Stated  and  Permanent  Clerks,  and  Dr.  Mason  and  myself 
were  nominated.  Dr.  Fisher  asked  if  there  were  any  further  nominations, 
but  none  were  made,  and  he  then  put  the  motion,  that  we  should  be  clerks, 
and  it  was  carried  almost  unanimously.  I  think  there  were  some  nays, 
but  if  so,  they  were  not  as  distinct  as  before.  These  negatives  came  from 
the  south-western  part  of  the  house,  or  from  towards  the  west  door.  There 
were  negatives  on  both  questions,  I  believe,  though  I  am  not  so  positive 
of  this,  in  regard  to  the  last,  as  in  regard  to  the  motion  for  Dr.  Fisher.  I 
cannot  say  certainly,  because  there  was  considerable  confusion  in  the 
house.  The  noes  came  from  that  part  of  the  house  occupied  by  the  Old- 
school  party — by  Mr.  Breckinridge,  Mr.  Plumer,  and  their  friends.  I 
am  positive  they  came  from  that  side.  There  was  but  one  nomination  for 
each  officer  appointed.  The  question  upon  the  first  motion,  that  of  Mr. 
Cleaveland,  I  know  was  reversed;  and  I  believe  that  it  was  reversed  on 
all  the  subsequent  motions.  I  know  it  was  reversed  on  two  or  three.  By 
this  time  there  was  considerable  confusion  in  the  house,  and  there  was  a 
motion  made,  that  the  Assembly  should  adjourn  to  meet  forthwith  in  the 
lecture-room  of  the  First  Presbyterian  Church.  This  motion  was  put  and 
carried.     The  question  was  reversed,  but  I  think  there  were  none  against 

11 


82 


PRESBYTERIAN  CHURCH  CASE. 


it.  Dr.  Fisher  declared  that  the  Assembly  had  adjourned  to  meet  forth- 
with in  the  lecture-room  of  the  First  Presbyterian  Church,  and,  that,  if 
any  commissioner  present  had  not  yet  handed  in  his  commission,  he 
should  attend  and  present  it  at  that  time  and  place.  I  do  not  remember 
the  reading  of  a  paper,  as  to  the  reason  of  adjournment.  Some  reason  was 
assigned,  as  the  confusion,  or  the  difficulty  of  occupying  that  house.  We 
left  the  Seventh  Churcli,  and  moved  off  to  the  lecture-room  of  the  church 
on  Washington  Square.  As  soon  as  we  were  convened  there,  or  a  few 
minutes  after,  the  roll  was  called,  and  we  proceeded  to  business.  Dr.  Pat- 
ton  then  offered  the  resolutions  which  he  had- offered  in  the  church  in 
Ranstead  Court — the  same  as  those  contained  in  the  paper  read  here. 
These  were  put  and  carried.  The  General  Assembly  of  which  I  was 
clerk,  continued  in  session  about  eleven  or  twelve  days,  in  the  church  on 
Washington  Square.  The  different  motions,  made  in  the  church  in  Ran- 
stead Court,  were  all  made  by  persons  having  an  undisputed  right  to  seats, 
having  been  reported  as  members,  by  the  Committee  of  Commissions,  ex- 
cepting Mr.  Squier.  They  all  made  their  motions  in  a  loud  voice — louder 
than  usual — so  that  they  could  be  heard  over  the  whole  house.  They 
were  addressed  to  the  whole  house.  I  should  think  there  was  an  oppor- 
tunity given  to  every  member  present  to  vote.  The  only  thing  that  made 
it  difficult  to  hear,  was  the  noise  at  times  made  in  the  house.  The  noise 
did  not  commence  until  after  Dr.  Patton  rose.  The  Moderator  called  to 
order,  and  others  around  the  Moderator,  cried  "Order!  Order!"  a  few 
times.  The  greatest  confusion  was  when  Mr.  Cleaveland  rose.  There 
were  a  great  many  cries  of  "  Order!"  from  those  around  the  Moderator, 
and  from  that  part  of  the  house,  mingled  with  coughing,  scraping,  hissing, 
and  hushing,  yet  not  so  loud  but  that  Mr.  Cleaveland  could  be  heard. 
Some  efforts  were  made  to  keep  down  the  noise.  Several  persons  rose  to 
their  feet,  and  there  was  considerable  confusion  in  the  gallery.  The  noise 
commenced  in  the  southern  and  south-western  portions  of  the  house.  The 
Old-school  occupied  the  seats  in  front,  but  they  were  most  compact  in  the 
south-western  corner,  and  there  was  more  hissing  there  than  in  any  other 
part.  The  lobby  is  under  the  pulpit,  at  the  south  end  of  the  church,  and 
from  it  there  are  two  doors,  one  on  each  side  of  the  pulpit,  into  the  church. 
Formerly  these  doors  had  always  been  left  open;  and  persons  who  wished 
to  get  places  near  the  Moderator's  chair,  entered  by  them.  I  had  never 
before  known  them  to  be  locked.  The  door  on  each  side  of  the  Modera- 
tor's chair  was  locked.  The  seats  around  the  Moderator's  chair,  were  all 
occupied  by  half  past  ten  o'clock,  but  some  persons  could  have  stood  in  the 
vacant  places.  The  locking  of  the  doors  compelled  all  who  came  after- 
wards to  take  seats  further  north.  I  have  never  before  seen  members  thus 
seated  at  that  hour.  The  whole  roll,  embracing  all  the  commissioners 
from  one  hundred  and  thirty-five  Presbyteries,  was  called  in  the  Assembly 
that  met  in  the  church  on  Washington  Square,  once  a  day.  I  cannot  state 
how  many  answered  to  their  names  the  first  day,  but' I  think  from  one 
hundred  and  seventeen  to  a  hundred  and  twenty.  There  were  some  upon 
the  roll  who  did  not  answer.  Afterwards  the  number  of  those  that  an- 
swered, was  about  a  hundred  and  thirty,  some  ten  or  twelve  having  been 
subsequently  received.  1  think  altogether  there  were  between  a  hundred 
and  twenty-seven,  and  a  hundred  and  thirty. 

The  counsel  lor  the  respondents  objecting  to  the  witness  being  exa- 


TESTIMONY  FOR  THE  RELATORS.  §3 

mined,  in  regard  to  the  election  of  the  relators  as  trustees,  M7\  Randall 
oflfered  in  evidence  the  Minutes  (New-school)  of  1S3S,  to  prove  the 
election. 

P.  650.  ''Monday  Morning,  May 'ilst.  *  i.  *  » 

"  Overture  No  4,  was  reported  by  the  Committee  of  Bills  and  Overtures,  taken  up 
and  adopted,  viz:  "Resolved,  That  for  the  current  year  the  Assembly  will  elpct  six 
trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America. 

"Resolved  that  the  election  of  said  trustees  be  made  the  order  of  the  day  for  Thurs- 
day forenoon  at  10  o'clock,  in  the  manner  prescribed  and  adopted  by  the  Assembly  in 
_1801,  p.  198,  199,  of  the  Digest." 

P.  654-5.  "  Thursday,  May  2ith.  *  *  *  * 

"At  10  o'clock  the  Assembly  proceeded  to  the  order  of  the  day,  viz.  the  election  of 
six  Trustees  of  the  General  Assembly.  Messrs.  Bog-ue,  Brown,  and  Chapin  were 
appointed  to  receive  the  ballots  and  report  the  result.  The  Assembly  ascertained  that 
no  vacancies  in  the  Board  of  Trustees  have  occurred  by  death  or  otherwise.  They  then 
proceeded  to  try  whether  they  could  elect  any  of  that  third  of  the  number  of  Trustees 
which  they  are  permitted  by  law  to  change,  by  voting  for  a  person  to  fill  the  place  of 
the  Rev.  Ashbel  Green,  D.  D.,  the  first  on  the  list.  On  counting  the  votes  it  was 
ascertained  that  all  the  votes  given  were  for  James  Todd,  who  was  accordingly  deidared 
by  the  Moderator  to  be  a  trustee  duly  chosen  in  the  place  of  Ashbel  Gre^n.  In  the 
same  manner  the  Assembly  procpeded  to  vote,  and  unanimously  elected  John  R.  Neffin 
the  place  of  George  C.  Potts;  Frederick  A.  Raybold  in  the  place  of  William  Latta; 
George  W.  McClelland  in  the  place  of  Thomas  Bradford;  William  Darling  in  the  place 
of  Solomon  Allen;  and  Thomas  Fleming  in  the  place  of  Cornelius  C.  Cuyler;  thus 
changing  as  many  of  the  trustees  as  they  are  permitted  by  law  to  change.  VVhereupon 
James  Todd,  John  R.  Neff,  Frederick  A.  Raybold,  George  W.  McClelland,  William 
Darling  and  Thomas  Fleming  were  declared  to  be  duly  elected  Trustees  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America." 

Mr.  Gilbert — cross-examined  by  Mr.  Hubbell.  The  vacant  space,  of 
which  I  spoke,  is  in  front  of  the  pulpit,  and  might  be  approached  from 
the  other  doors.  I  passed  through  that  space,  when  I  went  round  to  act 
as  clerk.  I  could  get  to  any  part  of  the  house,  after  the  doors  by  the  sides 
of  the  pulpit  were  locked,  but,  as  the  aisles  were  crowded,  it  was  not  as 
convenient  for  a  modest  man  to  do  so,  as  if  they  had  not  been  locked. 
All  other  but  modest  men  could  get  seats  as  well  as  if  the  doors  had  not 
been  locked,  but  the  nearest  way  to  the  front  seats  was  through  the  lobby 
doors.  There  are  four  other  doors  to  the  church  besides  the  ones  that 
were  closed.  I  believe,  that  when  I  arrived,  all  the  doors  by  which  the 
congregation  usually  pass  into  the  church  were  open.  It  is  not  custom- 
ary, I  believe,  in  general,  for  people  to  pass  through  the  doors  from  the 
lobby.  The  Assembly  has  met  in  that  church,  I  think,  at  least  seven  or 
eight  times.  The  persons  in  the  galleries  were  females.  A  mixed  con- 
gregation of  males  and  females,  such  as  is  usually  found  in  a  church,  were 
seated  in  the  back  pews,  on  the  floor  of  the  house.  There  were  clamo- 
rous expressions  of  applause  from  the  galleries,  and  other  parts  of  the 
house  during  our  proceedings,  especially  after  Mr.  Cleaveland's  last 
motion.  I  did  not  see,  around  where  I  stood,  any  who  were  not  members 
of  the  Assembly.  The  brethren  of  the  New-school  occupied  such  seats 
as  they  could  get,  and,  very  probably,  there  may  have  been  some  who 
were  not  members  in  the  same  seats.  I  do  not  recollect  whether  the 
clerks — Mr.  Krebs  and  Dr.  McDowell,  came  into  the  house  after  I  had 
entered. 

By  Mr.  Preston.  I  am  not  positive  whether  the  Moderator  was  seated, 


84 


PRESBYTERIAN  CHURCH  CASE. 


when  Dr.  Paltoii  made  his  motion,  or  not.  The  clerks  were  in  advance 
of  Dr.  Elliott,  and  both  he  and  they  continued  to  occupy  the  same  places, 
so  long  as  I  saw  them.  The  gentlemen  who  were  seated  near  the  pulpit, 
to  the  best  of  my  recollection,  also  remained  in  their  places  as  long  as  I 
saw  them.  The  gentlemen  of  the  Old-school  were  the  majority.  I  do 
not  know  that  our  proceedings  were  entirely  without  the  body  of  the 
Old-school,  but  they  took  place  on  its  circumference.  The  body  of  the 
Old-school,  intervened,  in  a  compact  mass,  between  us  and  Dr.  Elliott. 
Dr.  Beman  was  not  conducted  to  the  chair,  but  stood  in  the  aisle,  in  the 
rear  of  the  Old-school  party.  The  seats  of  the  Moderator  and  clerks  are 
invariably  in  front  of  the  members,  but  I  have  heard  of  an  Assembly's 
having  held  its  session  in  the  street,  without  any  clerks  at  all.  The 
Assembly  of  1837  met  at  the  gate  of  a  church  in  this  city.  It  is  not  usual 
for  there  to  be  two  Moderators  of  the  Assembly  at  the  same  time.  I  have 
known,  however,  two  sitting  at  the  same  time,  both  called  Moderators. 
In  the  year  1837,  there  was  one  at  the  gate  of  the  church  in  Spruce  street, 
and  another  in  the  Central  Church;  but  these  were  not  in  the  same  house. 
I  have  never  known  two  persons  to  sit  in  the  same  house,  both  claiming 
to  be  Moderators.  I  am  sure  that  some  of  the  Old-school  participated  in 
our  proceedings  at  the  church  in  Ranstead  Court.  The  mass  of  them  did 
not  go  with  us,  but  remained  behind.  The  Old-school,  I  believe,  had  a 
majority. 

Mr.  Preston.  Did  you  understand,  that  the  Old-school  were  taking  a 
part  in  the  proceedings  which  you  have  detailed,  or  that  they  had  entirely 
segregated  themselves,  and  took  no  part  ? 

Mr.  Randall  objected  to  the  witness  giving  his  understanding  of 
the  matter. 

Mr.  Hubbell.  Such  a  question  though  not  proper  for  an  examination 
in  chief,  is  proper  for  a  cross-examination,  the  object  of  which  is,  not  to 
obtain  new  testimony,  but  to  qualify  that  already  given. 

Judge  Rogers.  The  only  difference  between  questions  proper  for  exa- 
mination in  chief,  and  those  proper  for  cross-examination,  is  in  their  form. 
Mr.  Preston.  I  wave  the  question. 

Cross-examination  continued.  The  meeting  before  mentioned,  at 
which  the  New-school  concerted  their  plan  of  proceeding,  was  not  com- 
posed exclusively  of  New-school  men.  No  one  was  excluded.  I  saw 
there  some  who  acted  with  the  Old-school  afterwards. 

Mr.  Randall.  We  object  to  going  into  the  proceedings  of  this  informal 
meeting. 

Mr.  Preston.  The  consultations  of  that  meeting,  and  the  concerted 
plan  of  operations  formed  by  the  party  who  held  it,  have  already  been 
given  in  evidence.  I  do  not  wish  to  establish  what  is  before  proved,  but 
to  deduce  from  the  testimony  a  fact,  of  which  we  all  know  very  well  the 
existence — that  there  were  in  the  church  in  Ranstead  Court  two  separate 
and  distinct  bodies,  acting  independently  of  each  other.  But  I  wave  the 
question,  and  will  try  to  come  at  what  I  want  in  another  way. 

Cross-examination  continued.  I  regarded  all  the  members  present  in 
the  Seventh  Presbyterian  Church,  as  participating  in  our  proceedings.  I 
had  supposed  that  we  should  have  a  strong  vote  against  us,  and  was  agree- 
ably surprised  to  hear  so  few  noes.     The  Old-school  men  did  not  go  with 


TESTIMONY  FOR  THE  RELATORS.  ^5 

US  on  our  adjournment  to  the  First  Presbyterian  Church.  I  believe  they 
were  still  in  their  seats  when  we  left  the  house.  We  did  not  regard  them 
as  having  any  Moderator  or  clerks. 

Mr.  Preston.  You  have  said  that  the  votes  on  the  several  motions 
were  unanimous,  or  nearly  so:  do  you  mean  by  this,  that  all,  or  nearly  all 
the  members  present  agreed  to  the  resolution,  and  considered  themselves 
as  taking  a  part  in  the  proceedings,  or  are  you  speaking  merely  of  a  legal 
fiction  ? 

Mr.  Randall.  We  object  to  the  question. 
,   Mr.  Preston.  The  word  unanimous  has  been  used  b)?^  the  witness : 
now  it  is  well  known  that  there  was  no  unanimity  on  the  occasion  of 
which  he  speaks.     I  want  to  understand  what  he  means  by  the  term  he 
uses. 

Mr.  Randall.  The  question  calls  for  not  merely  the  opinion  of  the 
witness,  but  goes  one  step  further,  and  asks  for  his  opinion  as  to  what 
were  the  opinions  of  others. 
The  question  being  waved,  the 

Cross-examination  tvas  continued.  Taking  all  the  Commissioners  to 
the  Assembly  of  1S3S,  I  think  there  was  a  small  majority  of  Old-school 
men  present.  The  proceedings  of  the  consultation  meeting  were  not 
exclusive  of  the  Old-school  party;  all  were  invited  to  attend. 

Mr.  Randall.  We  object  to  all  testimony  as  to  that  meeting.  No 
part  of  the  evidence  given  in  regard  to  the  informal  meetings  of  either 
party  was  brought  out  in  our  examination  in  chief.  We  have  only  made 
inquiry  into  the  fact  of  the  doors  being  locked,  and  have  not  trespassed 
upon  what  happened  in  those  meetings. 

Mr.  Preston.  I  trust  your  Honour  perceives  the  object  we  have  in 
view.  A  part  of  the  proceedings  concerted  at  the  meeting  spoken  of, 
were  afterwards  carried  out  in  the  Assembly.  Now  the  witnesses  speak 
of  a  unanimous  vote.  They  have  sworn  that  the  votes  on,  certain  pro- 
ceedings were  nearly  unanimous.  But  every  gentleman  present  knows 
that  these  proceedings  were  schismatic,  revolutionary,  and  violent.  Then 
words  are  not  here  used  in  their  common  signification.  The  witness 
misrepresents,  and  satisfies  his  conscience  by  a  mere  legal  fiction.  We 
wish  to  discover  the  meaning  which  the  gentleman  affixes  to  his  terms. 
The  New-school  party  was  a  minority,  and  the  Old-school,  during  the 
proceedings  alluded  to  were  segregated  from  them,  and  did  not  consider 
themselves  as  acting  with  them.  The  testimony  is  not  offered  for  itself; 
merely  to  elucidate  the  meaning  of  words. 

Mr.  Wood.  The  thing  may  be  gotten  at  appropriately,  and  by  a  simple 
inquiry  into  facts.  It  may  be  shown  how  many  voted  and  how  many 
did  not  vote;  that  when  the  witness  speaks  of  a  majority,  he  means  a 
majority  of  those  who  voted;  that  some  voted  in  the  negative,  and  that 
some  did  not  choose  to  vote.  Then  it  may  be  shown  that  these  last  were 
the  Old-school  party.  The  legal  question  however  will  still  remain. 
When  a  motion  is  put  what  is  a  sufficient  majority  to  decide  it?  A 
majority  of  all  who  vole?  Or  must  there  be  a  majority  of  all  present? 
This  is  a  question  of  law.  Who  did  or  did  not  vote  is  a  question  of  fact. 
As  to  asking  for  opinions,  designs,  purposes — it  has  already  been  decided 
that  this  is  improper.     The  proof  of  previous  concert  has  nothing  to  do, 


8(J  PRESBYTERIAN  CHURCH  CASE. 

that  I  can  see,  with  the  meaning  of  the  witnesses.     The  question  of  design 
will  be  discussed  hereafter. 

Judge  Rogers.  Such  testimony  as  to  previous  plans  and  purposes 
cannot  be  admitted;  but  the  witness  may  be  required  to  explain  the  mean- 
ing of  the  terms  he  uses. 

Cross-examination  continued.  I  considered  the  votes  on  the  motions 
put  by  Drs.  Beman  and  Fisher,  in  the  Seventh  Church,  as  nearly  unani- 
mous. 

M7\  Preston.  Do  you  mean  by  unanimity,  a  mental  acquiescence  of 
the  members  of  the  Old-school  party  in  yourproceedings? 

Mr.  Randall.  I  object  to  the  witness  being  questioned  in  regard  to 
the  minds  of  the  other  party,  which  he  could  not  possibly  inspect. 

Mr.  Preston.  I  want  an  explanation  of  the  term  unanimous — which 
means,  of  one  mind. 

Mr.  Ingersoll.  I  would  say  one  word,  which  I  think  appropriate  here. 
The  witness  is  asked  for  the  meaning  of  a  term  he  uses  in  regard  to  cer- 
tain proceedings.  My  notion  of  those  proceedings  is,  that,  such  was  the 
spirit  of  confusion  which  prevailed,  those  who  did  not  vote  were  taken 
by  storm;  found  a  sudden  tempest  raised  about  them;  saw  and  heard 
something  that  took  place,  on  their  skirts,  or  border,  they  knew  not 
exactly  what.  Now  if  the  term  unanimous  is  left  unexplained  a  very 
erroneous  impression  may  be  produced. 

Judge  Rogers.  I  have  said  that  I  admit  the  explanation. 
Mr.  Randall.  Will  the  counsel  please  to  put  the  question  in  writing? 
Mr.  Preston,  (having  written  his  question.)  The  witness  having  said 
that  the  vote  on  Dr.  Fisher's  nomination  was  unanimous,  I  ask,  "By  the 
use  of  the  word  "  unanimous"  do  you  mean  an  intentional  acquiescence 
or  approbation  of  the  appointment  of  Dr.  Fisher,  as  Moderator  of  the 
General  Assembly  of  the  Presbyterian  Church  ?" 

Mr.  Randall.  I  thought  there  was  something  about  mental  reserva- 
tion in  the  question  before. 

Mr.  Preston.  0  no!  the  mental  reservations  are  not  on  our  side. 
Mr.  Meredith.  It  seems  to  me  that  there  is  no  difference  between  the 
question  now  offered  and  that  first  put.  It  is  not  proper  for  either  an 
examination  in  chief,  or  a  cross-examination.  We  are  here  attempting  to 
prove  by  parol  evidence,  the  proceedings  of  a  certain  body;  but  the  ques- 
tion now  proposed,  leaving  what  actually  took  place,  goes  to  the  inten- 
tions of  the  members  of  that  body.  Is  this  legal  testimony  ?  If  instead  of 
parol  proof,  a  minute  of  the  proceedings  were  offered,  could  such  a  cross- 
examination  as  this  follow?  Could  we  go  behind  that  minute  and  ask  for 
the  opinion  of  a  witness,  as  to  the  intentions  and  opinions  of  those  who 
acted?  What  have  we  to  do  with  their  intentions  or  opinions?  How  are 
we  to  guess  what  they  were?  Here,  not  merely  the  opinion  of  the  wit- 
ness IS  asked  for,  but  his  opinion  of  what  were  the  opinions  of  others. 
He  has  no  means  of  knowing  any  thing  about  the  matter.  It  is  true  that 
unanimous,  in  a  strict  sense,  means  that  there  is  a  concert  of  minds, 
but  as  commonly  used,  it  expresses  the  state  of  an  actual  vote  only — 
what  is  said,  and  not  what  is  thought.  Will  you  attempt  to  prove  the 
intention  with  which  a  person  voted  aye,  or  no?  We  have  been  told, 
and  very  properly  told,  by  one  of  the  learned  counsel,  that  the  exegetical 


TESTIMONY  FOR  THE  RELATORS.  g7 

history  of  the  Assembly  is  not  to  be  brought  into  this  court.  The  inten- 
tion of  its  members  is  to  be  discovered  only  by  their  votes,  not  by  an 
inquiry  as  to  motives  and  designs.  And  how  much  less  can  it  be  ascer- 
tained from  the  opinion  of  the  witness?  There  cannot  be  any  thing  more 
than  a  mere  guess  on  such  a  subject.  The  witness  is  asked,  "  Do  you 
believe  that  the  members  of  the  Assembly  intended  to  do  what  they  did  ?" 
Mr.  Ingersoll.  I  beg  your  pardon!  He  was  asked  to  explain  his  use 
of  the  word  unanimous. 

Judge  Rogers.  The  counsel  desire  only  an  explanation  of  the  meaning 
of  the  witness.     I  do  not  see  how  we  can  get  along  without  it. 

Mr.  Meredith.  I  now  perceive  a  slight  difference  between  this  and  the 
question  first  offered.  I  have  hitherto  considered  it  as  an  inquiry  whether 
certain  persons  intended  to  vote.  We  make  no  objection  to  the  wit- 
ness explaining  his  use  of  the  word  unanimous.  The  question  presents 
two  aspects — the  meaning  of  the  words  used  by  the  witness,  and  whether 
the  fact  was  so  or  so.  We  do  not  object  to  the  mere  explanation,  but  the 
witness  must  take  care  that  he  does  not  give  also  his  opinion. 

Judge  Rogers.  The  witness'  opinion  is  not  evidence,  but  his  mean- 
ing certainly  is. 

Mr.  Gilbert — the  question  having  been  repeated.  I  use  the  word 
according  to  the  language  of  our  judicatories.  With  us,  when  several  are 
in  favour  of  a  motion,  and,  the  question  being  reversed,  there  are  none 
opposed,  it  is  said  to  be  carried  unanimously.  No  reference  is  had  to  the 
intentions  of  members.  I  did  not  use  the  word  in  reference  to  the  vote 
on  Dr.  Fisher,  but  to  that  on  Dr.  Beman.  I  used  it  according  to  legal 
intendment,  and  according  to  our  constitution.  It  is  impossible  for  any 
one  to  say  whether  a  majority  voted.  The  vote  was  very  loud — louder 
than  usual,  and  the  voices  very  numerous.  I  will  not  venture  to  say  that 
a  majority  did  vote.  I  do  not  know  that  but  a  minority  voted.  I  am 
now  speaking  of  actual  voting. 

Mr.  Preston.  If  a  majority  had  voted  against  you,  what  would  you 
have  done  then? 

The  question  was  objected  to. 

Mr.  Preston.  The  witness  has  already  said  that  there  was  a  previous 
understanding  and  concert  among  the  members  of  the  New-school.  As 
they  knew  at  this  time  that  the  Old-school  had  a  majority,  I  wish  to  know 
what  they  had  determined  to  do  if  voted  down.  I  submit  the  question  to 
your  Honour, 

Judge  Rogers.    I  do  not  think  this  a  proper  question. 
Re-examined  by  Mr.  Randall.    The  seats  where  members  usually  sit 
were  entirely  occupied,  when  I  entered  the  house.     There  was  no  vacant 
pew,  though  perhaps  a  few  individual  seats  here  and  there. 

Mr.  Preston.  A  word  of  explanation,  if  you  please.  I  understood  you 
to  say,  that  some  of  the  Old-school  voted  in  the  negative. 

Mr.  Gilbert.  I  did  not  say  that  some  of  the  Old-school  voted;  but  that 
the  voices  came  from  the  part  of  the  house  where  they  sat. 

Re-examination  continued.  I  have  never  before  known  a  Moderator 
to  refuse  to  put  an  appeal  from  his.  decision.  Our  rules  are  express  on 
this  subject.  Formerly  the  old  rules  of  the  Assembly  were  in  force,  until 
new  ones  were  adopted.  This  was  so  until  Mr,  Breckinridge  came  into 
the  Assembly,  five  yeaus  ago,     Mr,  Breckinridge  was  the  author  of  the 


gg  PRESBYTERIAN  CHURCH  CASE. 

regulation  to  re-adopt  the  rules  at  every  session.     The  old  rules,  as  I 
understand  it,  are  in  operation  till  new  ones  are  adopted. 

Rev.  Dr.  Erskine  Mason — swo)m.  I  was  a  commissioner  to  the 
General  Assembly  of  1838,  from  the  Third  Presbytery  of  New  York, 
which  is  not  within  the  bounds  of  the  exscinded  Synods.  On  the  day 
appointed  for  the  meetino;  of  that  Assembly,  the  third  Thursday  of  May, 
I  went  to  the  church  up  Ranstead  Court.  As  I  was  going  up  the  court  I 
met  several  individuals,  by  whom  something  was  said  in  regard  to  seats 
inside.  I  went  to  the  door  of  the  house  nearly  facing  the  court,  and  look- 
ing in,  saw  persons  thickly  collected  in  the  small  aisle,  I  then  went  round 
to  the  door  at  the  other  end  of  the  building,  and  walking  down  the  middle 
aisle  got  as  near  the  pulpit  as  I  could;  I  don't  recollect  how  many  p^ws 
there  were  between  me  and  the  pulpit.  I  found  the  seats  immediately  in 
front  of  the  pulpit  occupied,  and  could  not  get  nearer  than  the  eighth  or 
ninth  pew.  I  took  my  seat,  and  the  preliminary  religious  exercises  com- 
menced. At  the  conclusion  of  these  exercises,  Dr.  Elliott,  the  Moderator 
of  the  Assembly  of  1837,  gave  noticq,  that  after  a  benediction  had  been 
pronounced,  he  would  come  down  and  proceed  to  constitute  the  Assem- 
bly. Accordingly  he  came  down  and  took  a  seat  in  front  of,  and  below 
the  pulpit.  Then  he  made  an  introductory  prayer,  at  the  close  of  which 
Dr.  Patton  rose  and  addressed  the  Moderator.  He  said  that  he  held  in 
his  hand  certain  resolutions  and  a  preamble,  which  he  desired  to  offer. 
The  Moderator  declared  him  out  of  order,  saying  that  the  next  business 
was  the  report  of  the  clerks.  Dr.  Patton  replied  that  his  resolutions 
would  consume  little  time,  and  he  would  not  debate  them.  The  Mode- 
rator said  he  was  out  of  order,  as  the  first  business  was  the  clerk's  report 
of  the  roll  of  the  Assembly.  Dr.  Patton  said,  that  the  resolutions  he 
wished  to  offer  had  reference  to  the  formation  of  the  roll.  The  Mode- 
rator again  declared  him  out  of  order.  Dr.  Patton  appealed  to  the  house, 
and  his  appeal  was  seconded.  The  Moderator  declared  his  appeal  out  of 
order,  and  said  that  the  clerks  had  the  floor.  Dr.  Patton  reminded  the 
Moderator,  that  he  had  the  floor  before  the  clerks.  The  Moderator  di- 
rected the  latter  to  proceed  with  the  roll.  At  the  conclusion  of  their  re- 
port, the  Moderator  stated,  that  if  there  were  any  commissioners  in  the 
house,  whose  commissions  had  not  been  presented,  now  was  the  time  to 
present  them.  I  immediately  rose,  and  stated  that  I  held  in  my  hand 
certain  commissions  to  the  Assembly  of  1838,  and  that  the  commissioners 
to  whom  they  belonged  were  present;  that  these  commissions  had  been 
presented  to  the  clerks  of  the  last  General  Assembly  and  rejected  by 
them;  and  moved,  that  the  roll  be  now  completed,  by  adding  the  names 
of  the  commissioners  from  the  Presbyteries  within  the  bounds  of  the  Sy- 
nods of  Utica,  Geneva,  Genesee,  and  Western  Reserve.  At  that  time  the 
Moderator  asked  me,  if  they  came  from  Presbyteries  connected  with  the 
Church  at  the  close  of  the  Assembly  of  1837.  I  answered,  that  they 
came  from  Presbyteries  within  the  bounds  of  the  Synods  of  Utica,  Gene- 
see, Geneva,  and  We'stern  Reserve.  The  Moderator  declared  me  out  of 
order.  I  then  said,  that,  with  all  due  respect  to  him,  I  must  appeal  to 
the  house.  My  appeal  was  seconded,  but  the  Moderator  declared  it  out 
of  order,  and  refused  to  put  it.  After  this  appeal  was  declared  out  of  or- 
der, the  Rev.  Miles  P.  Squier  rose,  stating  that  he  had  handed  his  com- 
mission to  the  clerks,  and  that  they  had  refused  it,  and  now,  tendering  it 


TESTIMONY  FOR  THE  RELATORS.  gg 

to  the  house,  he  demanded  a  seat,  and  that  his  name  should  be  put  on  the 
roll.  The  Moderator  asked  from  what  Presbytery  he  came.  Mr.  Squier 
answered,  from  the  Presbytery  of  Geneva.  The  Moderator  asked  whe- 
ther that  Presbytery  belonged  to  the  Sjmod  of  Geneva;  Mr.  Squier  an- 
swered, that  it  was  within  the  bounds  of  the  Synod  of  Geneva.  The 
Moderator  replied,  "  We  do  not  know  you."  Then  the  Rev.  John  P. 
Cleaveland,  from  the  Presbytery  of  Detroit  rose,  and  said,  in  substance, 
that  as  the  Assembly  could  not  be  constitutionally  organized,  unless  by 
the  admission  of  all  the  commissioners  present,  as  some  of  these  commis- 
sioners had  been  refused,  and  as  the  Moderator  and  clerks  had  not  done 
their  duty,  therefore  he  moved,  that  Dr.  N.  S.  S.  Beman  take  the  chair. 

This  motion  was  seconded,  and  put  by  Mr.  Cleaveland,  who  said,  "  All 
those  who  are  in  favour  of  the  resolution  will  signify  it  by  saying,  aj^e," 
and  then,  reversing,  "All  tliose  who  are  opposed,  will  signify  it  by  say- 
ing, no."  Mr.  Cleaveland  declared  Dr.  ]3eman  elected.  There  were 
some  who  voted,  no.  I  heard  distinctly  two  or  three  noes.  They  came 
from  the  quarter  of  the  house  in  front  and  to  the  right  of  the  pulpit.  One 
person  in  the  pew  immediately  in  front  of  me  said,  "No!"  Idontknowhis 
name.  Dr.  Beman  then  stepped  out  of  the  pew  in  which  he  was  sitting, 
and  took  his  station  in  the  middle  aisle.  At  that  time,  some  one  nomi- 
nated Mr.  Gilbert  and  myself  as  temporary  clerks.  This  motion  was  se- 
conded and  carried.  I  still  had  the  commissions  which  I  had  offered  in 
my  hand,  and  acting  as  clerk,  considered  the  commissioners  to  whom  they 
belonged,  of  whom  I  had  a  list,  as  on  the  roll.  Dr.  Beman  called  for 
nominations  for  a  Moderator.  Dr.  Fisher  was  nominated,  and  no  one 
else.  Dr.  Beman  put  the  vote,  and  Dr.  Fisher  was  chosen  by  a  large 
majority.  There  were  some  votes  in  the  negative,  coming  from  the  same 
quarter  as  before.  Dr.  Beman  declared  Dr.  Fisher  elected,  and  made 
way  for  him  to  take  the  place  which  he  had  occupied.  Dr.  Fisher  took 
it,  and  called  for  nominations  for  clerks.  Mr.  Gilbert  and  myself  were 
nominated  the  question  was  put,  and  we  were  elected.  At  that  moment, 
Dr.  Beman  either  read  a  paper,  or  made  a  statement,  to  the  purport  that 
that  house  could  not  be  occupied  by  the  Assembly,  and  moved  that  we 
now  adjourn  to  meet,  forthwith,  in  the  lecture-room  of  the  First  Presby- 
terian Church.  This  motion  was  put  and  carried,  and  Dr.  Fishei-'  gave 
notice  of  the  adjournment,  and  said  that  any  commissioners  prescHt,  who 
had  not  yet  handed  in  their  commissions  to  the  Assembly,  should  do  so  at 
the  place  and  time  to  which  the  Assembly  had  adjourned.  Then  the 
Assembly  came  to  order  in  the  lecture-room  of  the  church  on  Washing- 
ton Square,  and  Dr.  Patton  offered  the  resolutions  which  he  had  wished 
to  offer  before.  I  should  here  state,  that  all  the  commissioners  from  the 
Western  Synods  present  were  now  on  the  roll,  and  several  others  were 
enrolled.     Afterwards  the  business  proceeded  in  the  usual  manner. 

In  the  church  in  Ranstead  Court,  the  Moderator  was  further  from  me, 
than  the  body  of  the  Old-school  party.  Most  of  them  were  between  him 
and  me,  and  had  as  good  a  chance  as  he  had,  or  a  better  one,  to  hear  what 
was  said.  All  the  motions  of  which  I  have  spoken,  were  seconded  by 
several  voices.  I  myself  seconded  several  of  them.  The  Moderator 
asked  me  if  the  commissions  v/hich  I  offered,  were  from  Presbyteries  be- 
longing to  the  exscinded  Synods.  I  answered  that  they  were.  He  then  said 
that  they  could  not  be  received.  I  then  made  a  tender  of  them  to  him. 
12 


90 


PRESBYTERIAN  CHURCH  CASE. 


When  Dr.  Patton  arose  there  were  a  few  calls  to  order,  and  when  I  got 
up,  there  were  several.  These  calls  came  from  that  portion  of  the  house 
occupied  by  the  Old-school'  members.  When  Mr.  Cleaveland  com- 
menced his  statement,  there  were  loud  cries  of  order,  coughing,  and 
scraping  on  the  floor,  but  these  ceased  before  he  had  concluded.  There 
was  very  little  noise  when  Mr.  Squier  was  on  the  floor.  The  calls  to  or- 
der ceased  before  I  got  through.  There  was  no  material  disturbance 
during  the  colloquy  between  the  Moderator  and  myself:  at  first  there 
were  some  calls  to  order,  but  these  subsided.  All  the  motions  put,  were 
put  in  an  audable  voice,  and  seconded.  Mr.  Gleaveland's  motion  I  know 
was  reversed.  That  on  the  election  of  Moderator  I  am  sure  was;  and, 
to  the  best  of  my  knowledge,  that  on  the  choice  of  clerks  also.  I  should 
think  ample  opportunity  was  giv.en  to  all  the  members  present  to  vote. 
The  scraping  and  hissing  seemed  to  come  from  that  portion  of  the  house 
where  the  Old-school  were.  Standing  as  I  did,  I  could  not  see  what  took 
place  in  that  part  of  the  house;  my  attention  was  directed  before  me. 
When  Mr.  Cleaveland  made  his  remarks,  he  faced  the  Moderator.  I  also 
faced  the  Moderator  when  I  was  on  the  floor.  So  did  Dr.  Patton,  and 
Mr.  Squier.  The  mass  of  the  Old-school  party  was  between  me  and  the 
Moderator. 

Mr.  Randall.  I  will  examine  Dr.  Mason  hereafter,  in  regard  to  some 
other  points,  not  immediately  connected  with  the  organization  of  the  As- 
sembly of  1838. 

Cross-examined  by  Mr.  Preston.  I  am  clerk  of  the  General  Assem- 
bly. I  am  not  in  possession  of  the  paper  read  by  Mr.  Cleaveland,  and  do 
not  know  where  it  is.  I  do  not  know  whether  the  paper  on  the  minutes 
is  that  offered  by  Mr.  Cleaveland.  I  did  not  prepare  the  minutes:  Mr. 
Gilbert,  the  Permanent  Clerk,  prepared  them.  I  never  saw  the  paper,  or 
read  it.  I  was  in  the  same  pew  with  Dr.  Beman.  He  sat  at  the  door, 
and  Mr.  Cleaveland  at  the  other  end.  I  cannot  recollect  the  others  who 
were  in  the  pew.  I  think  a  gentleman  named  Nixon  was  there.  The 
pew  was  full.  When  I  was  a])pointed  clerk,  I  took  my  station  in  the 
aisle.  I  stood,  and  had  no  pen  or  ink,  but  I  had  paper  and  a  pencil.  I 
had  in  my  hand  the  commissions  which  I  had  tendered  to  the  Moderator, 
and  another  paper  containing  the  roll  of  the  members  of  the  General  As- 
sembly, including  the  names  of  those  commissioners  who  had  been  re- 
jected by  the  clerks.  This  roll  was  on  two  pieces  of  paper,  one  contain- 
ing the  names  previously  read  by  the  clerk,  and  the  other  those  of  the 
members  from  the  Western  Synods.  I,  in  connection  with  Mr.  Gilbert, 
had  made  out  this  roll  on  the  floor  of  the  house,  partly  from  the  report  of 
the  clerks,  and  partly  from  other  sources,  as  from  the  information  of  per- 
sons who  were  commissioners.  I  had  no  commissions  in  my  possession 
but  those  which  1  had  offered.  The  others  were  in  the  possession  of  the 
clerks  of  the  last  Assembly.  My  own  I  had  given  to  the  clerks:  that  is, 
it  had  been  given  to  them.  The  names  of  all  the  commissioners  from 
our  Presbytery  were  enrolled  in  one  commission.  I  considered  the  list 
which  I  held  in  my  hand  as  the  roll.  That  was  my  first  act.  I  had  the 
names  on  paper,  and  I  considered  that  putting  them  on  the  roll  was  my 
first  act.  I  had  really  so  far  put  them  on  the  roll,  that  if  it  had  been  ne- 
cessary to  call  it,  I  should  have  called  all  the  names.  That  consideration 
was  my  first  official  act. 


TESTIMONY  FOR  THE  RELATORS.  9  J 

Mr.  Preston.  Were  any  other  of  the  acts  which  you  have  detailed 
mere  considerations? 

Dr.  Mason.  I  did  not  report  any  roll  until  we  got  to  the  First 
Church.  The  first  roll  had  already  been  reported  at  the  other  house.  I 
reported  the  additional  names  of  the  commissioners  from  the  four  ex- 
scinded Synods.  Mr.  Krebs  had  reported  the  former  at  the  other  house, 
and,  I  presume,  the  other  commissions  are  in  the  possession  of  the  clerks 
of  iS3S.  I  cannot  say,  precisely,  how  m.any  were  in  the  possession  of 
the  clerks  of  our  house.  They  are  not  all  here  in  this  bundle.  About  a 
'dozen  were  handed  in  after  our  adjournment,  to  the  best  of  my  recol- 
lection. Our  roll  was  made  up  of  those  names  which  we  had  caught 
from  the  report  of  Mr.  Krebs,  with  those  taken  from  these  commissions, 
and  from  the  ten  or  twelve  presented  afterwards.  The  officers  were  chosen 
by  a  large  majority — a  majority,  I  may  say  without  hesitation,  of  all  who 
voted.  There  is  a  rule,  contained  in  the  appendix  to  the  Book  of  Dis- 
cipline, which  says,  that  silent  members  shall  be  considered  as  voting  in 
the  affirmative.  So  then,  if  but  two  voted  in  the  affirmative,  and  only  one  in 
the  negative,  a  motion  would  be  carried.  I  have  no  means  of  determining, 
whether  a  majority  of  all  the  members  present  voted  in  the  affirmative. 
I  should  not  like  to  say  that  a  majority  did  so  vote;  but  I  have  no  doubt 
that  a  majority  voted  one  way  or  the  other.  I  cannot  say  how  many 
New-school  men  retired  from  the  Seventh  Church. — More  than  fifty-five 
or  sixty:  I  should  think,  more  than  seventy.  I  cannot  state  whether 
there  were  a  hundred.  I  took  no  account  till  afterwards.  I  judged  of 
the  majority  by  the  sound  of  the  voices,  and  from  the  number  who  an- 
swered in  the  negative.  I  suppose  that  those  persons,  who  were  after- 
wards in  the  Assembly  with  us,  voted  in  the  affirmative.  This  is  one 
reason  of  my  conclusion  in  regard  to  the  majority. 

Court  adjourned. 

MONDAY  MORNING,  March  1  1th— 10  o'clock. 

Dr.  Mason — cross-examination  by  Mr.  Preston  continued.  I  can- 
not say,  certainly,  whether  the  roll  made  up  in  the  church  in  Ranstead 
Court  was  written  by  myself  I  had  made  out  one,  as  far  I  could,  before 
the  house  met;  and  one  was  furnished  by  another  person.  I  had  made 
mine  as  full  as  I  could.  I  forget  which  of  the  two  was  used.  The  defi- 
ciency in  it  was  supplied  as  the  clerks  read.  I  took  down  names,  in  two 
instances,  myself,  but  do  not  recollect  that  I  took  more  than  two.  It  was 
well  known,  beforehand,  who  would  be  the  commissioners:  their  names 
had  been  published  in  the  newspapers.  The  roll  was  not  verified  at  the 
First  Presbyterian  Church,  by  the  production  of  commissions.  We  had 
not  the  commissions  which  had  been  handed  in  to  the  clerks  of  1S37. 
These  [the  ones  contained  in  the  bundle  which  had  been  given  in  evi- 
dence] are  all  the  commissions  which  we  had,  at  first.  The  roll  which 
we  used  in  organizing  the  Assembly  was  obtained  from  the  sources 
which  I  have  mentioned.  It  would  have  been  our  duty  to  examine  the 
commissions,  if  they  had  not  been  examined  by  the  regular  clerks  be- 
fore. I  did  examine  each  commission  which  I  had,  attentively,  accord- 
ing to  the  rules  of  the  Church.  To  the  best  of  my  recollection,  I  found 
them  all  regular.     I  dfl'not  remember  finding  any  fault.     In  making  the 


92 


PRESBYTERIAN  CHURCH  CASE. 


roll,  I  did  not  compare  these  commissions  with  the  form  prescribed. 
The  constitution  does  not  prescribe  any  form,  or,  at  least,  any  form 
which  is  obligatory — which  must  strictly  be  adhered  to.  It  gives  a  form, 
and  then  says,  "  this,  or  a  like  form,"  shall  be  used.  This  [a  commission 
from  the  Presbytery  of  Geneva  having  been  handed  to  him]  is  one  of  those 
thj^t  I  examined.  I  would  pronounce  it  regular.  I  approved  of  it  at  that 
time. 

I  appealed,  when  the  Moderator  refused  to  put  my  motion.  I  said, 
that,  "  with  the  greatest  respect  for  the  Chair,  I  must  appeal  from  that 
decision."  The  right  of  appeal  is  certainly  known  to  our  constitution, 
for  appeals  are  often  made.  I  cannot  recollect  whether  the  right  is  ex- 
pressly granted  in  the  constitution.  It  is  provided  for  in  the  regulations 
which  have  been  made  by  the  Assembly,  and  recommended  by  them  to 
all  the  courts  of  the  Church.  An  appeal  is  made  to  every  person  present 
at  the  time  in  the  house.  When  the  General  Assembly  is  organized,  an 
appeal  is  made  to  the  house  as  organized.  I  intended  to  make  mine  to 
all  those  who  had  commissions.  All  there,  who  held  commissions,  were, 
unquestionably,  members  of  the  Assembly  of  1838,  and  my  appeal  was 
made  to  them. 

Mr.  Preston.  Did  you  make  your  appeal  to  the  Assembly,  or  to  the 
gentlemen  present  in  the  house? 

Dr.  Maso7i.  I  made  it  to  all  the  persons  present  who  had  commis- 
sions; them  I  considered  members  of  the  Assembly  of  1838. 

Mr.  Preston.  Did  you  make  it  to  an  organized  Assembly,  or  to  dis- 
orderly individuals? 

Dr.  Mason.  That  question  asks  for  my  opinion  merely. 
Mr.  Preston.  I  do  not  wish  to  enter  into  a  colloquy  with  the  wit- 
ness; I  will  explain  the  question  to  the  Court.  One  great  difficulty  un- 
der which  we  labor,  is  the  use  of  technical  terms,  which  may  be  under- 
stood in  one  sense  by  the  witness,  and  in  another  by  the  jury.  He  has 
spoken  of  an  appeal — an  appeal  from  the  decision  of  the  Moderator. 
We  want  to  get  at  his  intendment — to  find  out  the  tribunal  to  which  he 
appealed. 

Dr.  Mason.  I  intended  to  appeal  from  the  Moderator  to  all  the  per- 
sons who  had  commissions,  whom  I  considered  members  of  the  As- 
sembly, 

Mr.  Preston.     Do  you  consider  it  the  legitimate  practice,  to  appeal 
from  a  constitutional  Moderator  to  an  unconstitutional  Assembly? 
This  question  was  objected  to. 

Mr.  Preston.  I  will  modify  it  so  as  to  bring  it  within  the  rule.  Has 
it  been  the  practice  to  appeal  from  a  constitutional  Moderator  to  an  un- 
constitutional Assembly? 

Dr.  Mason.  I  am,  comparatively,  a  young  man,  and  therefore  can- 
not speak  with  certainty  as  to  the  practice.  1  know  it  is  very  common 
in  the  General  Assembly,  to  take  an  appeal  to  the  body  over  which  the 
Moderator  presides. 

Mr.  Preston.     Over  what  body  was  the  Moderator  presiding? 
Dr.  Mason.     Our  constitution  will  tell  you,  that  he  was  presiding  in 
the  organization  of  the  Assembly  until  a  new  Moderator  should  be  ap- 
pointed.    This  is  my  opinion.     A  new  Moderator  had  not  been  ap- 
pointed when  I  took  my  appeal.     The  new  officers  of  the  Assembly,  as 


TESTIMONY  FOR  THE  RELATORS.  93 

I  Stated  yesterday,  took  their  station  in  the  middle  aisle.     They  were  all 
nearly  in  contact. 

Mr.  Preston.    When  the  temporary  Moderator  had  been  chosen,  what 
was  the  form  of  his  induction  into  office? 

Dr.  Mason.  Dr.  Beman,  when  called  upon,  stepped  out  of  the  pew  in 
which  he  had  been  sitting,  and  took  his  place  in  the  middle  aisle. 

Mr.  Preston.  Well,  what  was  the  form  of  Dr.  Beman's  abdication, 
and  of  his  induction  of  Dr.  Fisher  into  office? 

Mr.  Mason.  Dr.  Beman  declared  Dr.  Fisher  elected.  I  cannot  re- 
collect whether  Dr.  Fisher  was  standing  on  the  seat.  The  distance  be- 
tween them  was  not  very  great.  Dr.  Beman  stepped  back,  and  Dr.  Fisher 
took  his  place.  He  did  not  call  the  Assembly  to  order,  but  called  for 
business.  I  don't  know  that  many  were  standing  on  the  seats  of  the 
pews.  All  these  things  were  transacted  as  rapidly  as  they  conveniently 
could  be.  I  cannot  say  what  Dr.  Elliott  was  doing  during  this  time. 
After  Mr.  Cleaveland's  resolution,  I  did  not  pay  particular  attention  to 
him.  I  don't  know  whether  he  retained  his  seat  or  not;  or  whether  he 
used  the  hammer,  or  called  us  to  order.  I  cannot  say  whether  the  New- 
school  party  were  generally  standing  up:  some  of  them  were.  My  at- 
tention was  directed  to  what  was  passing'around  me,  and  I  did  not  see 
the  Moderator  or  clerks.  I  do  not  know  that  any  proceedings  were,  du- 
ring this  time,  conducted  by  the  Moderator  or  clerks.  I  didn't  hear  any 
thing  going  on  in  that  quarter.  I  had  the  roll  made  out,  and,  while  Mr. 
Krebs  was  reading,  made  notes  with  my  pencil.  There  were,  on  the  roll 
which  was  called  at  the  First  Presbyterian  Church,  the  names  of  several 
persons  who  did  not  appear  till  some  days  afterwards;  but  they  were  all 
on  the  roll  reported  by  the  clerks  of  1837.  Such  was  the  case  I  recollect 
in  regard  to  Mr.  Boynton,  an  elder  from  the  Synod  of  Albany.  I  do  not 
recollect  whether  Mr.Martin  and  Mr.  Fabrigue,  from  Salem  Presbytery, 
appeared  at  the  opening  of  the  Assembly.  I  don't  remember  at  what 
time  Mr.  Glover,  or  Mr.  Stewart,  from  Charleston  Union  Presbytery, 
appeared.  I  recollect  only  the  case  I  have  mentioned;  but  I  think  there 
were  others  of  the  same  kind.  Mr.  Boynton  was  enrolled;  but  I  don't 
know  whether  he  ever  took  his  seat  with  us.  I  cannot  tell  immediately 
how  many  took  their  seats  in  our  General  Assembly;  but  the  number 
enrolled  was  not  far  from  one  hundred  and  thirty.  Nearly  the  whole  of 
these  took  their  seats.  I  do  not  include  those  who  remained  in  the  church 
in  Ranstead  Court.  The  whole  roll  included  all  those.  My  opinion  is 
that  a  majority  of  all  on  the  full  roll  did  not  take  seats  with  us. 

By  Mr.  Hubbell.  I  used  to  belong  to  the  Synod  of  Albany,  and 
therefore  Mr.  Boynton's  name  was  impressed  upon  my  memory. 

By  Mr.  Preston.  I  don't  recollect  whether  Dr.  Green's  name  was 
on  our  roll.  He  did  not  sit  with  us,  nor  did  Mr.  Robert  J.  Breckinridge. 
The  case  which  I  have  mentioned  was  like  one  of  these:  Mr.  Breckin- 
ridge is  therefore  another  instance.  I  never  attended  the  Assembly  at 
the  Church  in  Ranstead  Court,  after  we  had  retired  from  that  place.  I 
went  once  afterwards  to  the  house,  but  the  Assembly  had  adjourned.  The 
gentleman  who  had  been  Moderator  next  before  Dr.  Elliott  was,  I  think. 
Dr.  Phillips.  I  do  not  know  whether  he  was  present.  To  the  best  of 
my  recollection,  the  one  next  before  him  was  Dr.Wm.  A.  McDowell,  but 
I  don't  know  whethei'-he  was  present.     I  don't  recollect  whether  Dr. 


94 


PRESBYTERIAN  CHURCH  CASE. 


Witherspoon  of  South  Carolina  was  the  one  before  him  or  not.  He  was 
Moderator  in  either  1835,  or  1836.  Each  of  those  whom  I  have  men- 
tioned has  held  that  office  since  Dr.  Beman. 

By  Mr.  Hubbell.  Mr.  Boynton's  name  was  read  by  the  clerks  of  1837, 
and  in  this  way  I  know  that  we  had  it  enrolled.  I  saw  afterwards  their 
printed  roll:  Mr.  Boynton's  name  was  not  there.  I  do  not  recollect 
whether  the  names  of  Mr.  S.  Glover  and  Mr.  R.  L.  Stewart,  elders  from 
Charleston  Union  Presbytery,  were  on  our  roll.  (The  Minutes  (New- 
school)  of  1838  being  put  in  his  hand — p.  645.)  They  are  on  the  list. 
They  did  not  attend  our  Assembly.  I  don't  know  how  I  got  their 
names,  unless  as  I  got  the  others— from  the  publications  of  the  day.  I 
do  not  recollect  from  which  Presbytery  Mr.  Boyton  came — I  think  it 
was  either  Londonderry  or  Newburyport.  Messrs.  Glover  and  Stewart 
never  answered  to  their  names,  and  did  not  present  any  commissions.  I 
had  nothing  to  do  with  taking  names  off  of  the  roll  after  the  Assembly 
was  organized.  I  had  something  to  do  with  the  preparation  of  the 
minutes  for  publication.  I  did  not  know  that  there  were  any  such  names 
on  the  roll.  I  cannot  state  whether  I  heard  their  names  read  from  the  roll 
of  the  clerks  of  1837.  If  not  on  their  roll,  we  had  no  reason  for  putting, 
them  on  ours,  and  they  ought  not  to  have  been  put  there.  I  don't  recol- 
lect whether  their  names  are  on  the  printed  roll  of  1838.  Mr.  Wm.  W. 
Martin,  and  Mr.  Henry  L.  Fabrigue,  from  Salem  Presbytery,  Synod  of 
Indiana,  were  on  our  roll;  I  don't  know  whether  their  names  were  on  Mr 
Krebs'.  I  don't  remember  examining  the  commissions  of  either.  Ori- 
ginally their  names  had  been  published  in  the  paper.  We  had  no  authori- 
ty to  put  down  any  but  those  on  Mr.  Krebs'  roll.  I  can't  say  whether 
I  took  them  from  that;  but,  if  not,  I  took  them  from  the  newspapers.  Mr. 
Brayton  from  the  Presbytery  of  Oneida,  I  think  presented  his  commis- 
sion originally  to  me,  and  I  examined  it.  I  do  not  recollect  in  regard  to 
Dr.  James  Richards  of  Cayuga,  but  think  his  case  was  similar  to  Mr. 
Brayton's.  I  think  I  examined  the  conmmission  of  the  Rev.  Samuel  W. 
Brace.  He  was  from  the  Presbytery  of  Cayuga:  I  recollect  that  Dr. 
Richards  and  he  were  in  the  same  commission,  but  not  as  principal  and 
alternate.  They  came  in  after  the  opening  of  the  Assembly.  We  had 
the  commission  of  Mr.  Justin  Marsh,  of  Marshall  Presbytery.  Mr. 
Adam  Miller,  of  the  Presbytery  of  Montrose,  came  to  our  body,  in  the 
First  Presbyterian  Church.  There  was  some  difficulty  in  regard  to  his 
commission.  His  case  was  referred  to  the  Committee  of  Elections,  and 
being  allowed  to  give  evidence  of  his  appointment,  he  was  admitted.  Mr. 
Jotham  Goodell  I  do  not  remember.  To  the  best  of  my  recollection,  we 
had  the  commission  of  Dr.  John  H.  Haynes;  he  was  an  elder  from  the 
Presbytery  of  Troy.  I  cannot  say  whether  Dr.  Witherspoon  was  pre- 
sent in  the  church  in  Ranstead  Court:  I  don't  know  him.  I  do  not  re- 
collect that  inquiry  was  made,  whether  any  person  that  had  been  Mode- 
rator subsequently  to  Dr.  Beman  was  present.  I  do  not  recollect  whether 
we  called  the  names  of  Dr.  Witherspoon  and  Dr.  Phillips  on  our  roll. 
They  both  were  on  it.  They  did  not  present  their  commissions  to  us, 
I  don't  remember  whether  I  took  their  names  from  Mr.  Krebs'  roll. 
^  By  Mr.  Ingersoll.  I  recollect  that  the  sexton  of  the  First  Presbyte- 
rian Church  was  at  the  other  house,  and  that  when  we  adjourned,  he  ran 
off  before  us.     I  saw  him  going  before  us. 


TESTIMONY  FOR  THE  RELATORS.  95 

Mr.  Wood.     What  complaints  were  made,  in  the  Assembly  of  1837, 
in  regard  to  irregularities  in  the  Synods  of  New  Jersey  and  Albany? 
Mr.  Hubbell.     We  object  to  the  question. 

Mr.  Wood.  I  will  <;hange  it.  Were  there  any  Congregational  churches 
in  those  Synods? 

Mr.  Hubbell.     We  still  object. 

Mr.  Randall.     Please  to  state  your  objection  to  the  court. 
Mr.  Hubbell.     The  testimony  offered  is  entirely  foreign  to  the  matter 
in  hand,  and  it  is  peculiarly  improper  that  it  should  be  brought  out  in  the 
r,e-examination  of  the  witness. 

Mr.  Wood.     I  offer  in  evidence  the  minutes  of  1837,  page  496. 
"  Resolved,  That  the  Synods  of  Albany  and  New  Jersey,  be  enjoined  to  take  special 
order  in  regard  to  the  subject  of  irregularities  in  church  order,  charged  by  common  fame 
upon  some  of  their  Presbyteries  and  churches." 
Now  I  want  this  matter  explained. 

Judge  Rogers.  What  is  the  pertinency  of  this  evidence,  Mr.  Wood? 
Mr.  Wood.  The  Assembly  of  1837  abrogated  the  "  Plan  of  Union," 
and  cut  oflf  four  Synods;  and  they  based  these  acts  on  the  idea  of  there 
being  a  necessity  for  them,  becaub^e  of  the  irregular  admission  of  Congre- 
gationalists  into  the  Church.  We  insist,  that  they  might  have  cut  off 
Congregational,  without  cutting  off  any  Presbyterian  churches,  and  that 
they  did  this  very  thing  in  the  Synods  of  New  Jersey  and  Albany. 

Mr.  Hubbell.  This  inquiry  is  entirely  foreign  to  the  case:  it  has  no 
bearing  upon  the  organization  of  the  Assembly  of  1838.  It  is  not  offen- 
sive, but  improper.  We  shall  have  enough  to  do  in  disposing  of  all  the 
matters  that  legitimately  belong  to  the  case,  without  going  into  those  fo- 
reign to  it.      We  object  to  the  testimony  as  irrelevant. 

Mr.  Wood.    I  presume  that  the  court  and  jury  by  this  time  see  clearly 
the  true  point  at  issue,  and  that  it  is  totally  impossible  to  understand  the 
proceedings  of  1838,  unless  we  go  back  to  those  of  1837.     I  am  not  sur- 
prised that  the  counsel  for  the  defendants  wish  to  shut  their  eyes  upon 
this  subject.   They  may  talk  of  a  little  matter  of  irregularity,  or  of  a  little 
noise  and  confusion;  of  this  seat,  or  that  seat;  of  this  hammer,  or  that 
cane;  but  all  these  are  trifles  light  as  air.     The  great  point  in  this  case  is 
the  exscinding  resolutions  of  1837,  the  operation  of  which  the  Old-school 
party  attempted  to  infuse  into  the  Assembly  of  1838,  by  means  of  the 
pledges  exacted  from  the  clerks.     This  is  the  true  point;  but  it  presents 
a  question  in  regard  to  resolutions  of  which  the  opposite  party  are  now 
ashamed.     Had  they  a  right  to  carry  out  the  void  acts  of  the  Assembly 
of  1837,  in  the  organization  of  the  Assembly  of  1838?     Here  was  tlie 
ground  on  which  sve  displaced  the  Moderator  and  clerks.     They  were 
acting  out  the  illegal  proceedings  of  1837:  they  were  attempting  to  or- 
ganize an  unlawful  Assembly.     There  is  a  principle  of  law,  respecting  all 
collective  bodies  whether  they  are  corporations  themselves,  or  like  the 
General  Assembly,  supply  or  feed  corporate  bodies,  and  are  therefore 
^rwa^z  corporate — a  principle  which  is  well  settled.     It  is  this:  No  As- 
sembly can  be  lawfully  constituted  without  the  admission  of  all  entitled 
to  seats,  or  without  giving  to  all  an  opportunity  to  come  in.     On  this  oc- 
casion, the  Old-school  party,  under  the  Moderator  and  clerks  of  1837, 
were  about  to  organize  the  General  Assembly,  without  admitting  the  re- 
presentatives of  near  -^fty  thousand  Presbyterians.     Here  is  the  great 


96 


PRESBYTERIAN  CHURCH  CASE. 


point,  and  to  this  we  want  to  bring  our  opponents.  We  mean  to  show 
that  this  was  the  ground  of  our  displacing  that  Moderator  and  those 
clerks,  appointing  new  ones',  and  proceeding  to  organize  the  body  in  a 
lawful  manner,  by  bringing  within  its  pale  every  member,  both  New  and 
Old-school.  It  is  all  important  to  inquire  into  the  character  of  the  ex- 
scinding resolutions:  they  are  like  the  baseless  fabric  of  a  vision.  It  is 
alleged  that  the  mixture  of  Congregationalism,  which  it  is  said  was  found 
in  the  four  Western  Synods,  was  the  reason  of  their  being  cut  off.  But 
why  not  take  the  same  order  in  regard  to  these,  which  they  did  in  regard 
to  the  Synods  of  Albany  and  New  Jersey?  We  now  desire  to  show  that 
they  knew  full  well  they  could  do  this.  They  did  not,  however,  attempt 
it,  but  at  one  fell  swoop,  pounced  on  older  Presbyteries,  merely  because 
they  were  alleged  to  contain  a  few  Congregational  churches.  There  were 
churches  of  the  same  kind,  I  say,  in  the  Synods  of  Albany  and  New  Jer- 
sey, but  for  some  reason,  those  Synods  did  not  share  the  fate  of  the.  others. 
We  therefore  wish  to  show  that  the  Assembly  did  take  order  in  re- 
gard to  the  former,  for  the  very  same  cause  for  which  they  cut  off  the 
latter.  If  we  show  this  we  leave  the  Old-school  party  without  the  colour 
of  a  pretence  for  cutting  off  these  Synods  without  trial  or  accusation. 

Mr.  Randall.  Your  Honour  will  recollect  the  course  of  examination 
pursued  by  the  counsel  on  the  other  side,  in  the  case  of  Mr.  Squier.  Out 
of  the  regular  order  of  proceedings,  they  inquired  into  the  fact,  whether 
there  were  any  Congregational  churches  in  the  four  Synods.  We,  then, 
have  a  right  to  consider  this  as  matter  of  defence — that  these  persons 
were  cut  off  without  hearing,  because  they  lived  in  an  infected  district. 

Judge  Rogers.  The  reasons  given  for  the  act  on  the  minutes,  are  dif- 
ferent from  those  that  the  counsel  assign.  I  don't  know  which  ground 
the  defendants  will  take. 

Mr.  Randall.  This  inquiry  has  been  entered  into  before.  We  want 
to  show  that  the  mother  Synod  of  Albany  was  as  obnoxious  to  the  charges 
on  which  the  exscinding  acts  were  founded,  as  its  offspring;  and  that  if 
the  Assembly  had  been  at  all  consistent,  it  would  have  excluded  the  Synod 
of  Albany,  the  mother  of  the  Synod  of  the  Western  Reserve,  and  the 
Synod  of  Michigan,  the  child  of  the  latter.  Nay,  the  friends  of  Mr.  Preston, 
in  Charleston,  ought  to  have  been  included,  for  there  too  there  are  Inde- 
pendent churches,  which  are  as  obnoxious  as  Congregational  ones,  mingled 
with  the  Presbyterian  churches.  Now  the  ground  taken  by  the  Old- 
school  is  untenable,  unless  their  acts  be  carried  out  to  their  legitimate 
extent.  As  they  have  not  been  thus  carried  out,  they  must  be  considered 
as  an  arbitrary  and  capricious  discrimination,  made  with  an  ulterior,  a 
covert  design.  If  the  Assembly  stated  the  true  cause,  it  ought  to  have 
been  consistent  in  its  acts.  This  point  is  directly  germane  to  the  evi- 
dence already  given.  It  might,  perhaps,  more  legitimately,  have  been 
reserved  for  the  defence;  but  as  the  opposite  counsel  have  introduced  it, 
as  they  have  extracted  evidence  on  this  subject  from  Mr.  Squier,  we  cer- 
tainly may  pursue  the  course  thus  opened.  It  is  undoubtedly  very  strange, 
that  a  Presbyterian  minister  should  be  excluded,  because  he  happens  to 
live  within  the  bounds  of  a  Synod  containing  a  few  Congregational 
churches.  Not  because  any  one  of  all  these  five  hundred  and  ninty-nine 
clergymen  is  not  a  Presbyterian:  such  an  allegation  has  been  avoided. 
Not  because  any  one  of  them  is  a  heretic;  but,  living  within  bounds  in 


TESTIMONY  FOR  THE  RELATORS.  97 

which  there  are  Congregational  churches,  they  are  ipso  facto  disrobed. 
Though  born  in  the  Presbyterian  Church;  though  many  of  them  fathers 
of  that  church,  you  send  them  all  off  into  the  world;  you  tell  them,  "We 
do  not  know  you,  yoii  are  not  within  the  fold."  Can  any  testimony  be 
more  german  to  the  issue?  The  Old-school  have  chosen  to  adopt  this 
ground:  we  propose  to  try  who  has  a  right  to  maintain  it.  The  reasons 
alleged  for  the  acts  of  excision  are  a  mere  pretext — I  say  it  with  respect — 
or  they  would  have  followed  up  those  acts  consistently.  With  a  high 
hand  they  have  made  arbitrary  stretches  of  power,  but  whenever  the  rays 
of  truth  shine  upon  their  acts,  must  appear  their  flagrant  enormity. 

Mr.  Sergeant.  It  is  the  most  natural  thing  in  the  world,  that  each 
party  should  look  at  their  own  side  with  affectionate  interest,  and  con- 
ceive all  sorts  of  strange  notions  in  regard  to  their  adversaries.  It  is 
natural  that  each  party  should  endeavour  to  pry  into  the  designs  and 
impugn  the  motives  of  the  other;  to  give  their  opponents  a  bad  name. 
This  course,  however,  we  have  not  adopted.  So  far  as  my  observation 
has  gone,  not  a  single  hard  word  has  been  said  by  any  one  of  my  col- 
leagues, but  I  am  sorry  to  say,  that  there  has  not  been  the  same  absti- 
nence exercised  towards  us.  By  the  opposite  counsel,  hard  words  have 
been  used,  and  unwarrantable  motives  imputed,  not  only  to-day,  but  in 
every  stage  of  the  proceeding.  To  all  this  we  answer,  we  are  before  a 
court  and  jury,  with  a  fit  case  to  be  decided  by  them;  that  as  to  our  own 
conduct,  it  is  for  ourselves  to  decide,  and  that  we  are  not  to  be  instructed 
on  this  point  by  others.  The  counsel  may  consider  a  question  very  tri- 
fling which  is  really  of  great  pith  and  importance,  and  they  may  do  so 
sincerely.  Or  they  may  attempt  to  ridicule  and  belittle  questions  which 
are  greatly  embarassing  them,  in  order  that  they  may  escape  into  others  of 
more  easy  management.  They  impute  to  us  a  design  to  keep  out  the 
light.  Let  me  tell  both  these  gentlemen,  that  we  stand  here  upon  our 
rights,  and  that  no  imputation  whatever,  from  any  quarter,  shall  drive  us 
from  this  ground.  If  we  consider  any  point  material  we  will  endeavour 
to  make  it  appear  so;  and  what  is  not  deemed  material  we  shall  try  to 
exclude.  We  will  not  allow  all  the  questions  in  the  world  to  be  drawn 
into  this  case:  we  have  enough  to  do  without  them.  There  are  some 
questions  which  are  here  called  little,  and  some  called  great.  Why,  may 
it  please  your  Honour,  in  this  scuffling  world,  any  question  may  be  little 
or  may  be  great,  according  to  circumstances;  and  one  may  be  just  as  great 
as  another.  Certainly  any  ground  on  which  a  right  stands,  is  strong 
enough  to  support  that  right.  The  other  party  have  had  full  license  to  bring 
up  this  case  for  the  consideration  of  the  court,  as  they  have  thought  best. 
We  have  not  interfered  in  their  plans,  and  if  now  they  find  themselves 
straightened  in  the  issue  which  they  have  chosen,  it  is  not  our  fault.  If 
they  please,  they  may  even  yet  stop  and  begin  again.  What  is  the  issue 
which  has  been  selected  by  the  learned  counsel  on  the  other  side?  My 
colleague  has  already  correctly  ."stated  it,  and  whether  the  question  pre- 
sented be  a  little  or  a  great  one,  it  is  certainly  their  own  question.  They 
say  that  the  body  which  met  in  the  First  Presbyterian  Church,  in  1838, 
was  the  true  General  Assembly;  that,  as  such,  that  body  was  authorized  to 
elect  a  certain  number  of  new  trustees,  which  they  are  said  to  have  done, 
thereby  vacating  the  seats  of  the  same  number  of  the  former  trustees;  and 
they  now  call  upqq  tbeVourt  tq  expel  the  latter  from  theiy  places.     Is 

13 


gg  PRESBYTERIAN  CHURCH  CASE. 

not  here  the  issue?  They  say  that  they  are  the  true  General  Assembly, 
This  we  deny.  Now  they  want  to  go  back  and  inquire,  why  we 
exscinded  certain  portions  of  the  Church,  and  not  content  with  even  this^ 
to  inquire  why  we  did  not  exscind  certain  other  portions.  In  what  part 
of  the  argument  have  the  counsel  shown  the  bearing  of  this  testimony  upon 
the  issue?  How  does  it  make  them  the  General  Assembly,  and  give  them 
the  power  of  electing  new  trustees,  and  vacating  the  seats  of  the  old  ones? 
It  has  not  the  least  bearing  or  effect.  It  is  only  leading  your  Honour  and 
this  jury  into  an  investigation,  the  limits  of  which  it  would  be  hard  to 
define,  but  which  would  make  it  necessary  for  you  to  assume  the  powers 
of  the  General  Assembly  itself.  How  will  such  evidence  contribute  to 
establish  the  legality  of  their  organization  ?  It  is  foreign  to  the  subject, 
unless  it  can  show  that  their  Assembly  sprung  forth,  though  a  child  of 
confusion,  still  a  full-grown  and  healthy  child,  able  to  destroy  its  own 
parent.  I  shall  not  undertake  to  express  any  opinion  as  to  the  proceed- 
ings of  our  opponents.  I  will  not  ascribe  to  them  fraudulent  designs: 
still  less  say  that  they  are  ashamed,  which  they  have  perhaps  no  more 
reason  to  be  than  we  have:  still  less  that  the  counsel  now  desire  to  form 
a  new  issue.  The  true  question  here,  and  that  which  must  be  broken  off 
and  separated  from  every  other  is,  which  body  was  the  true  Assembly. 
This  is  the  sole  issue.  There  may  be  a  great  deal  even  in  the  little  ham- 
mer: perhaps  it  is  not  without  real  weight.  The  place  of  organization 
may  be  of  considerable  import.  There  may  be  a  great  many  different 
things  going  to  show  that  the  body  which  met  in  the  First  Presbyterian 
Church  was  not  the  General  Assembly.  We  not  only  object  to  the  tes- 
timony offered,  but  think  it  very  extraordinary.  There  was  no  objection 
made  in  the  Assembly  of  183S,  to  receiving  the  commissioners  from  these 
Synods.  There  was  to  be  sure  an  admonition  given  by  the  Assembly  of 
1837,  that  the  Synods  of  Albany  and  New  Jersey  should  guard  against 
any  infusion  of  Congregationalism;  or  that  they  should  get  rid  of  such  an 
infusion.  That  was  all.  On  any  and  all  these  grounds,  we  contend  that 
this  testimony  has  no  relation  to  the  issue;  and  we  say  that  if  admitted, 
it  will  lead  into  an  interminable  investigation. 

Judge  Rogers.  I  think  this  inquiry  is  foreign  to  the  subject.  We  must 
determine  the  legality  of  the  Assembly's  proceedings  as  to  the  exscinded 
Synods,  not  whether  they  were  impartial. 

Dr.  Mason — re-examined  by  Mr.  Wood.  By  the  direction  of  the 
Assembly  of  1838,  I  went  to  Dr.  McDowell,  and  demanded  from  him 
the  books  and  papers  of  the  Assembly,  and  the  commissions  that  were  in 
his  possession.  He  declined  altogether  to  give  me  any  paper.  Mr.  Cleave- 
land,  as  a  preliminary  to  his  motion,  stated  in  substance,  that,  as  it  seemed 
impossible  to  organize  the  Assembly  of  1838,  under  its  present  officers, 
since  a  number  of  commissioners  had  been  refused  their  seats,  and  as  it 
was  necessary  to  proceed  to  its  organization,  he  hoped  it  would  be  consi- 
dered a  matter  not  of  discourtesy,  but  of  necessity;  and  he  moved  that 
Dr.  Beman  should  take  the  chair. 

By  Mr.  Randall.  This  commission  (a  paper  having  been  hand- 
ed to  him,)  is  the  one  that  Mr.  Squier  presented.  Mr.  Boynton  I  never 
saw  on  the  ground  during  the  meeting  of  the  Assembly.  Mr.  Krebs' 
roll  might  have  containecl  the  name,  though  itclid  |iot  appear  on  the  print- 
ed roll. 


TESTIMONY  FOR  THE  RELATORS.  99 

Mr.  Huhbell.  Could  a  name  have  been  properly  put  on  Mr.  Krebs' 
roll,  without  the  commissioner  being  present? 

Dr.  Mason.  Sometimes  the  names  of  all  the  delegates  from  a  Presby- 
tery are  in  one  commission,  and  therefore,  though  one  of  the  commission- 
ers is  not  present,  his  name  may  get  on  the  roll.  I  don't  know  how  it 
was  in  this  case. 

Cross-examined  by  Mr.  Ingersoll.  There  was  no  written  communi- 
cation made  to  Dr.  McDowell,  in  regard  to  the  papers  of  the  Assembly. 
Mr.  Krebs,  when  I  called  on  him,  was  not  at  home:  I  addressed  a  note  to 
hirn,  and  received  an  answer. 

Mr.  Randall,     We  will  now  call  on  Mr.  Krebs,  for  the  original  roll 
of  the  Assembly  of  1838. 
'Mr.  Krebs.     It  is  in  the  hands  of  Dr.  McDowell. 

(The  roll  was  sent  for.)  '' 

Mr.  Randall.  While  we  are  waiting  for  the  roll,  I  will  read  in  evi- 
dence a  portion  of  the  minutes  of  1837,  page  411. 

Mr.  Preston.  I  should  like  to  know  whether  the  whole  of  those  min- 
utes are  not  in  evidence.  Unless  they  are,  I  object  to  the  reading  of  ex- 
tracts. 

Judge  Rogers.  Each  part  that  is  pertinent  to  the  issue  I  consider  in 
evidence;  and  as  to  the  pertinency  of  any  part,  the  court  must  determine. 

Mr.  Randall  then  read  as  follows: 

"The  General  Assembly  of  the  Presbyterian  Church,  in  theUnited  States  of  Ame- 
ica,  met  agreeably  to  appointment,  in  the  Central  Presbyterian  Church,  in  the  city  of 
■..Philadelphia,  on  Thursday,  the  18th  day  of  May,  1S37,  at  11  o'clock  A.  M. ,  and  was 
opened  with  a  sermon,  by  the  Rev.  John  Witherspoon,  D.  D.,  the  Moderator  of  the  last 
Assembly,  from  1  Corinthians  i.  10,  11.  'Now  I  beseech  you,  brethren^  by  the  name 
of  our  Lord  Jesus  Christ,  that  ye  all  speak  the  same  thingf,  and  that  there  be  no  division 
amonor  you;  but  that  ye  be  perfectly  joined  together  m  the  same  mind,  and  in  the  same 
judgment.  For  it  hath  been  declared  to  me  of  you,  my  brethren,  by  them  which  are  of 
the  house  of  Chloe,  that  there  are  contentions  among  you.' 

"After  public  worship,  the  Assembly  was  constituted  with  prayer,  in  the  lecture- 
room  of  the  Central  Church,  and  had  a  recess  until  4  o'clock. 

"  At  4  o'clock  the  Assembly  met. 

"  The  Standing  Committee  of  Commissions  reported  that  the  following  persons  pre- 
sent have  been  duly  appointed  commissioners  to  this  General  Assembly,  viz." 

(Here  follows  the  roll.) 

Fortn  of  Government,  Chap.  XII.  Sect.  7. — "The  General  Assembly  shall  meet  at 
least  once  in  every  year.  On  the  day  appointed  for  that  purpose,  the  Moderator  of  the 
last  Assembly,  if  present,  or,  in  case  of  his  absence,  some  other  minister,  shall  open  the 
meeting  with  a  sermon,  and  preside  until  a  new  Moderator  be  chosen.  No  commis- 
sioner shall  have  a  right  to  deliberate  or  vote  in  the  Assembly  until  his  name  shall  have 
been  enrolled  by  the  clerk,  and  his  commission  publicly  read,  and  filed  among  the  pa- 
pers of  the  Assembly. 

Appendix  to  Constitution — General  Rules  for  Judicatories. — "1.  The  Moderator 
shall  tiike  the  chair  precisely  at  the  hour  to  which  the  judicatory  stands  adjourned  :  he 
shall  immediately  call  the  members  to  order ;  and,  on  the  appearance  of  a  quorum,  shall 
open  the  session  with  prayer. 

"  2.  If  a  quorum  be  assembled  at  the  hour  appointed,  and  the  Moderator  be  absent, 
the  last  Moderator  present  shall  be  requested  to  take  his  place  without  delay." 

Mr.  Gilbert  recalled  by  Mr.  Randall.  The  appearance  of  the  names 
of  Messrs.  Martin  and  Fabrigue,  on  the  printed  roll,  was  an  error  of  the 
printing  committee.  These  names  were  not  on  the  previous  record;  but 
the  committee  took  a  wrong  roll. 


^QQ  PRESBYTERIAN  CHURCH  CASE. 

Cross-examined  by  Mr.  Preston.  The  roll  which  I  used  was  origi- 
nally taken  from  that  of  Mr.Krebs,  and  was  amended,  by  the  addition  of 
the  names,  from  commissions  afterwards  handed  in.  I  took  down  the  roll 
as  he  read  it,  by  the  assistance  of  such  preparation  as  I  had  been  able  to 
make  before.  The  names  had  been  published  in  the  Presbyterian:  I  took 
some  from  that,  some  from  persons  who  held  commissions,  and  some  from 
other  sources.  Then  while  Mr.  Krebs  read,  I  watched,  and  erased  or  in- 
serted names,  according  to  circumstances.  After  he  had  finished,  I  could 
have  repeated  the  roll,  just  as  he  had  read  it.  I  mean  to  say,  that  I  cor- 
rected my  roll,  which  had  been  prepared  from  the  Presbyterian  and  other 
sources,  by  the  reading  of  Mr.  Krebs.  I  made  the  corrections  as  well  as 
I  could.  I  had  not  the  commissions  of  all  the  members;  but  probably 
about  a  third  part  of  them.  I  think  I  saw  the  commissions  of  more  than 
one  half:  they  were  handed  to  me  by  the  persons  who  held  them.  I  saw 
the  commissions  from  all  the  exscinded  Presbyteries,  and  a  great  many 
others,  before  they  were  presented  at  the  Seventh  Church.  They  were 
not  submitted  to  me,  as  clerk  of  the  General  Assembly.  I  was  acting  in 
an  official  capacity  at  the  time:  I  was  clerk  of  the  consultative  meeting. 

Mr.  Preston.  Was  it  as  clerk  of  the  meeting  for  consultation,  that 
you  saw  those  commissions? 

Mr.  Randall.  We  object  to  the  witness  going  into  that  meeting  for 
consultation. 

Judge  Rogers.     I  do  not  think  it  a  proper  question. 

Mr.  Preston.  The  witness  uses  terms  in  a  double  sense,  and  I  wish 
him  to  explain  his  meaning.  He  says  that  these  commissions  were  pre- 
sented to  him,  and  that  he  was  acting  at  the  time  in  an  official  capacity. 
We  wish  to  show,  that  they  were  not  submitted  to  him  as  clerk  of  the 
General  Assembly. 

Mr.  Gilbert.  They  were  not  presented  to  me  as  clerk  of  any  body. 
I  was  requested  by  some  one,  I  cannot  tell  who,  to  look  at  them. 

Mr.  Wood  objected  to  the  witness  speaking  farther  of  this  matter. 

Cross-examination  continued.  There  was  no  formal  request  made 
by  any  organized  body;  but  some  one  suggested  that  it  would  be  best  for 
us  to  see  the  commissions.  By  ''us,"  I  mean  the  delegates  to  the  con- 
sultation meeting. 

We  saw  the  commissions  in  the  session-room  of  the  First  Presbyterian 
Church,  in  the  hands  of  the  members.  This  view  of  them  was  previous 
to  the  meeting  of  the  Assembly.  I  did  not  see  them  in  the  hands  of  Mr. 
Krebs.  I  did  not  see  all,  but  I  should  say,  not  far  from  half — perhaps, 
from  one  hundred  and  thirty  to  a  hundred  and  forty.  I  cannot  say  whe- 
ther I  saw  any  of  the  commissions  of  the  Old-school,  but  think  I  did — 
speaking  here  of  the  Old-school  as  a  party  in  Church  politics.  I  had 
seen  the  paper  which  was  presented  by  Mr.  Cleaveland.  The  substance 
of  it  is  on  our  records.  The  paper  on  the  record  is  nearly  the  same,  but 
not  identical;  perhaps  it  contains  something  taken  from  his  interspersed 
remarks.  It  contains  a  few  things  which  I  did  not  myself  hear.  He 
held  the  paper  in  his  hand,  and  read  it,  interspersing  it  with  remarks,  by 
way  of  apology  to  Dr.  Elliott.  Some  things  are  in  the  record  which  I 
did  not  hear,  though  I  thought  I  heard  every  word.  I  did  not  see  the  paper 
'in  its  last  shape.     I  am  the  recording  clerk,  and  copied  the  minute  from 


TESTIMONY  FOR  THE  RELATORS.  JQl 

a  paper  presented,  but  it  was  not  the  one  which  Mr.  Cleaveland  held,  and 
from  which  he  read. 

By  Mr.  Hubbell.  The  insertion  of  the  names  of  Messrs.  Martin  and 
Fabrigue,  I  have  said,-  was  a  mistake  of  the  printing  committee.  I  re- 
quested them  to  insert  the  roll  at  a  particular  place,  and  they  inserted  a 
wrong  one.  I  did  not  see  the  proof-sheet,  and  cannot  say  from  what  they 
printed.  I  furnished  them  with  a  roll  for  printing.  There  was  a  roll 
read  at  the  opening  of  our  Assembly,  with  those  names  upon  it.  This  is 
not  the  roll  completed  by  the  clerks;  there  is  that  error  in  it.  The 
uames  of  these  two  men  were  called  at  the  opening  of  our  Assembly,  and 
afterwards,  perhaps  for  some  days,  but  not  very  long.  The  error  was 
then  discovered  and  corrected.  I  do  not  know,  that  there  is  any  necessi- 
ty for  inserting  the  roll  on  the  minutes,  but  it  is  customary  to  do  so.  I 
struck  out  the  two  names  by  erasure — I  cannot  say  when.  There  was 
perhaps  more  than  one  copy  of  the  original  roll,  and  probably  that  occa- 
sioned the  mistake.  With  my  roll,  which  had  not  these  two  names  upon 
it,  before  them,  the  printing  committee  probably  took  the  two  names  from 
another  roll.  I  struck  their  names  off,  because  I  found  I  had  made  a  mis- 
take, and  had  not  heard  them  answer.  I  saw  a  notice  in  the  papers,  that 
these  gentlemen  sat  in  the  other  Assembly.  The  names  of  Glover  and 
Stewart  I  must  have  understood,  were  on  Mr.  Krebs'  roll.  I  think  it 
very  probable  I  made  a  mistake  as  to  these  two  also.  My  recollection  in 
regard  to  the  matter  is  not  very  distinct.  We  called  the  names  of  all 
those  who  remained  in  the  church  in  Ranstead  Court,  regularly  once  a 
day,  until  the  close  of  our  session.  I  do  not  now  recollect,  whether  at 
the  time  when  I  gave  the  roll  to  the  printing  committee,  I  knew  that  I 
had  made  a  mistake  as  to  Messrs.  Glover  and  Stewart.  So  far  as  I  re- 
member, I  had  not  discovered  the  error. 

Mr.  Wood.  Please  to  look  at  the  remarks  of  Mr.  Cleaveland,  as 
they  are  recorded  in  the  minutes,  and  read  them  aloud. 

Mr.  Gilbert,  reading — 

"  The  Rev.  John  P.  Cleaveland,  of  the  Presbytery  of  Detroit,  rose,  and  stated  in  sub- 
stance as  follows:  That  as  the  commissioners  to  the  General  Assembly  of  1838,  from  a 
large  number  of  Presbyteries,  had  been  refused  their  seats;  and  as  we  had  been  ad- 
vised, by  counsel  learned  in  the  law,  that  a  constitutional  organization  of  the  Assembly 
must  be  secured  at  this  time  and  in  this  place,  he  trusted  it  would  not  be  considered  as 
an  act  of  discourtesy,  but  merely  as  a  matter  of  necessity,  if  we  now  proceed  to  orga- 
nize the  General  Assembly  of  1838,  in  the  fewest  words,  the  shurtest  time,  and  with  the 
least  interruption  practicable.  He  therefore  moved  that  Dr.  Beman,  from  the  Presby- 
tery of  Troy,  be  Moderator,  to  preside  till  a  new  Moderator  be  chospn." 

Mr.  Cleaveland  did  not  address  the  Moderator  when  he  made  these  re- 
marks: his  face  was  towards  the  Moderator,  but  he  did  not  say,  •'  Mr. 
Moderator."  I  did  not  hear  the  word  "  interruption,"  and  some  others. 
He  said,  in  addition  to  what  is  there  recorded,  that  it  was  no  matter  in 
what  part  of  the  house  the  Moderator  stood.  I  don't  recollect  any  other 
additional  words.  He  had  a  paper,  from  which  he  read,  and  he  inter- 
spersed the  reading  with  parenthetical  remarks.  I  understood  him  to 
read  the  whole  of  the  paper.  This  is  the  paper,  in  substance.  It  con- 
tains every  main  idea  of  his  speech,  so  far  as  I  recollect. 

Cross-examined  by  Mr.  Hubbell.  It  is  usual,  in  difficult  cases,  to  ap- 
point a  committee  to  prepare  a  minute.  This  was  done  in  the  present 
instance;  the  committeOrreported  the  minute,  and  it  was  adopted. 


102 


PRESBYTERIAN  CHURCH  CASE. 


Rev.  Dr.  Samuel  Fisher — sworn.  I  was  a  member  of  the  Assembly 
of  1S3S,  from  the  Presbytery  of  Newark,  Synod  of  New  Jersey.  I  at- 
tended the  meeting,  on  the  third  Thursday  in  May,  in  the  Seventh  Pres- 
byterian Church.  I  went  about  half  past  ten  o'clock,  (I  am  not  quite 
positive  as  to  the  time,)  handed  in  my  commission  to  Dr.  McDowell,  in 
the  committee-room,  and  then  going  round  to  the  east  door,  walked  down 
the  side  aisle.  I  found  the  seats  near  the  pulpit  occupied.  I  spoke  to 
Dr.  Green  and  others,  and  sat  down  on  a  bench  in  front  of  the  pews;  but 
finding  this  seat  uncomfortable,  walked  up  the  aisle  about  one-fourth  of 
the  distance  from  the  front  pew  to  the  rear  of  the  church,  found  a  pew  not 
yet  full,  and  took  a  seat  at  the  far  end  of  it.  Dr.  Elliott  concluded  his  dis- 
course and  then  gave  notice,  that,  after  the  blessing  had  been  pronounced, 
he  would  take  the  seat  before  the  pulpit,  and  proceed  to  constitute  the 
Assembly.  Accordingly,  he  came  down,  and  constituted  the  Assembly 
by  prayer.  As  soon  as  he  had  prayed.  Dr.  Patton  rose,  and  addressed 
him,  saying  that  he  had  some  resolutions  which  he  <lesired  to  offer.  The 
Moderator  told  him  he  was  out  of  order;  that  the  first  business  was  the 
report  of  the  clerks  upon  the  roll.  Dr.  Patton  replied,  that  he  was  very 
desirous  to  present  them  at  that  time.  The  Moderator  told  him,  he  was 
out  of  order,  and,  the  second  time,  directed  the  clerk  to  proceed  with 
the  roll.  Dr.  Patton  appealed  from  the  decision,  and  his  appeal  was  se- 
conded. The  Moderator  declared  the  appeal  out  of  order,  and  refused  to 
put  it  to  the  house;  and,  I  think,  told  the  clerk  to  go  on,  or  said  that  the 
next  business  was  the  report  upon  the  roll,  or  something,  to  that  effect. 
Dr.  Patton  said  that  his  resolutions  had  reference  to  that  very  object.  Dr. 
Elliott  told  him,  that  he  was  out  of  order;  that  the  clerks  had  the  floor. 
Dr.  Patton  said,  that  he  had  had  the  floor  before  the  clerks.  The  Mode- 
rator told  him,  he  was  out  of  order,  and  he  then  sat  down. 

The  clerk  having  finished  the  roll,  and  stated  that  there  had  been  some 
informal  commissions  presented,  a  Committee  of  Elections  (I  think  it 
was  at  this  time,)  was  appointed.  Dr.  Mason  then  rose,  and  presented  a 
resolution  to  the  effect,  that  the  names  of  the  commissioners  from  the  four 
Synods  of  Utica,  Geneva,  Genesee,  and  Western  Reserve,  should  be  added 
to  the  roll,  saying  that  they  had  been  presented  to  the  clerks,  and  by  them 
refused.  He  was  called  to  order.  Then  a  conversation  took  place  between 
him  and  Dr.  Elliott.  Dr.  Elliott  asked,  whether  those  commissions  came 
from  Presbyteries  within  the  bounds  of,  or  belonging  to,  the  Presbyterian 
Church  at  the  close  of  the  sessions  of  the  Assembly  of  1837.  Dr.  Mason 
replied,  that  they  were  within  the  bounds  of  the  four  Synods  mentioned, 
naming  them  again.  The  Moderator  said,  "They  cannot  be  received." 
Dr.  Mason  replied,  that  he  must,  respectfully,  appeal  to  the  house  from  that 
decision.  His  appeal  was  seconded;  but  the  Moderator  declared  it  to  be 
out  of  order.  Dr.  Mason  then  held  up  the  bundle  of  commissions,  and, 
I  think,  demanded  that  the  names  should  be  put  upon  the  roll.  He  was 
again  pronounced  out  of  order,  and  he  sat  down.  Immediately,  the  Rev. 
Miles  P.  Squier  rose,  on  the  opposite  side  of  the  aisle,  and  held  up  a  com- 
mission, which  he  said  he  had  received  from  the  Presbytery  of  Geneva. 
He  said,  that  it  had  been  presented  to  the  clerks,  but  that  they  had  refused 
him  his  seat.  The  Moderator  asked,  if  the  Presbytery  of  Geneva  be- 
longed to,  or  was  connected  with,  the  Synod  of  Geneva.  Mr.  Squier  an- 
swered, that  it  was  within  the  bounds  of  the  Synod  of  Geneva.     The  Mo- 


TESTIMONY  FOR  THE  RELATORS.  J  03 

derator  replied,  "  We  do  not  know  you."  Then  Mr.  Cleaveland,  from 
the  Presbytery  of  Detroit,  rose,  with  a  paper  in  his  hand,  but  did  not  read 
all  from  the  paper.  I  sat  in  the  next  pew  to  him,  and  had  seen  the  paper 
before.  He  prefaced  his  remarks  by  saying,  that  whereas  the  Moderator 
and  clerks  had  refused  to  receive  a  number  of  commissions  from  different 
Presbyteries  to  the  Assembly,  and  had  repeatedly  refused  to  perform  the 
duties  incumbent  upon  them,  so  that  the  Assembly  could  not  be  regularly 
organized;  and  as  we  had  been  advised  by  counsel,  learned  in  the  law, 
that  it  must  be  organized  at  that  time,  and  in  that  place,  therefore  he 
moved  that  Dr.  Beman  should  be  Moderator  of  the  preliminary  meeting. 
This  motion  was  seconded,  put  to  vote  by  Mr.  Cleaveland,  and  carried  by 
a  large  majority.  Dr.  Beman  stepped  out  of  the  pew,  and  walked  up  the 
aisle  the' width  of  three  or  four  slips,  to  about  the  distance  of  twenty-five 
or  thirty  feet  from  me,  and  stated,  that  the  next  business  would  be  the 
election  of  clerks.  Dr.  Mason  and  Mr.  Gilbert  were  nominated;  the  nomi- 
nation was  seconded,  and  the  question  put,  and  carried  by  a  large  majority. 
Afterwards  he  stated,  that  the  next  business  was  the  election  of  a  Mode- 
rator. Some  person  nominated  me;  the  nomination  was  seconded,  and 
the  question  was  put,  and  carried  by  what  I  estimated  a  large  majority. 
I  rose  up — but  did  not  stand  on  the  seat,  that  is  not  my  habit — I  walked 
to  the  front  of  the  pew,  and  into  the  aisle,  within  a  few  steps  of  where  Dr. 
Beman  stood.  When  Dr.  Beman  declared  me  elected  Moderator,  he 
turned  towards  me,  and  told  me,  that  I  should  be  governed  by  the  rules 
that  the  Assembly  shold  adopt.  After  this,  I  took  the  station  which  he 
had  left,  saying,  that  the  next  business  was  the  choice  of  clerks,  and  called 
for  nominations.  Dr.  Mason  and  Mr.  Gilbert  were  nominated,  and  none 
others.  I  put  the  question,  in  a  distinct  and  loud  voice,  and  it  was  carried 
by  a  large  majority.  I  said,  "All  those  who  are  in  favor  will  say,  aye;" 
then,  "Those  opposed  will  say,  no."  I  used  very  few  words.  After  the 
clerks  had  been  appointed,  a  motion  was  made  to  adjourn  to  the  First 
Presbyterian  Church.  This  was  seconded,  and  put,  so  that  it  could  be 
heard  all  over  the  house,  and  it  was  carried.  I  then  announced,  that  if 
any  persons  had  not  presented  their  commissions  they  should  present 
them  at  the  First  Presbyterian  Church.  We  went  to  the  First  Church,  and 
conducted  our  business  as  usual. 

I  sat  looking  toward  the  south-western  portion  of  the  house,  and  heard 
all  that  passed.  I  have  detailed  the  facts  as  correctly  as  possible.  I  mean 
by  a  majority,  what  is  usually  called  so,  in  our  ecclesiastical  judicatories. 
There,  when  a  question  is  put,  and  voted  upon  viva  voce,  if  there  are  one 
hundred  ayes,  and  but  ten  noes,  the  motion  is  said  to  be  carried  by  a 
large  majority.  It  is  not  known  whether  all  vote.  If  the  roll  is  called, 
then  account  is  taken  of  the  vote  of  each  person  present.  On  Dr.  Beman's 
nomination,  there  seemed  to  be  about  ten  or  twelve  noes:  they  appeared 
to  come  from  the  quarter  where  the  brethren — I  don't  like  to  call  them 
the  Old-school — sat.  My  position  was  on  the  boundary  line  between  the 
two  ranges  of  pews,  and  I  was  looking  toward  the  south-west  part  of  the 
house.  There  was  one  negative  on  my  left  hand,  coming  from  a  pew  oc- 
cupied by  our  brethren  of  the  Old-scliool.  The  others  came  from  the 
same  quarter.  The  resolutions  were  offered  in  an  audible  voice,  and 
could  have  been  heard  by  any  body  disposed  to  hear.  The  most  dense 
portion  of  the  Old-schoal  sat  in  the  south-west  corner  of  the  house.    The 


104 


PRESBYTERIAN  CHURCH  CASE. 


Moderator  was  south  of  the  great  body  of  those  gentlemen,  though  some 
were  partly  behind  him.  I  have  been  a  minister  of  the  Presbyterian 
Church  thirty  years  this  spring,  and  have  attended  the  General  Assembly 
about  once  every  three  years,  making  in  all  eleven  or  twelve  times.  I  am 
conversant  with  the  rules  of  the  Assembly.  Where  but  one  person  is 
nominated  to  any  office,  the  question  is  taken  viva  voce.  Where  more 
than  one,  the  roll  is  invariably  called.  I  have  never  known  in  any  As- 
sembly, a  refusal  to  put  an  appeal.  I  should  have  supposed  that  no 
Moderator  would  have  assumed  such  a  power  to  himself. 

Cross-examined  by  Mr.  Preston.  I  had  never  previously  been 
Moderator.  I  don't  recollect  that,  at  the  time,  I  saw  Dr.  Witherspoon 
present.  I  did  see  Dr.  Philips.  Dr.  Beman  had  been  Moderator — I  can- 
not state  in  what  year — probably  about  1831.  Dr.  Witherspoon  after- 
wards appeared  as  a  member  of  the  Assembly.  My  nomination  was 
seconded.  A  call  was  made  for  other  nominations,  but  there  was  no  re- 
ply in  my  hearing.  Dr.  Beman  announced  my  election  and  stated  to  me 
that  I  was  to  be  governed  by  the  rules  which  the  General  Assembly  should 
adopt.  He  stood  with  his  face  directed  toward  the  south-east  corner  of 
the  house,  it  being  turned  partly  towards  the  Moderator,  and  partly  to- 
wards me.  He  sat  in  the  pew  next  behind  me.  He  walked  jnorth  two 
or  three  slips — (as  the  oblong  pews  are  called  at  the  east,  to  distinguish 
them  from  the  square  ones.)  His  face  was  towards  me  when  he  announced 
my  election.  When  he  called  for  nominations,  he  addressed  the  prelimi- 
nary meeting,  to  which  he  stood  in  a  quartering  way.  The  mass  of  the 
New-school  brethren  were  north  of  me,  on  both  sides  of  the  aisle.  Dr. 
Beman  sat  near  the  front  of  them,  and  not  in  their  centre.  The  largest 
portion  of  the  Old-school  was  in  the  south-west  corner.  The  densest 
mass  of  the  New  school  were  collected  in  my  rear. 

When  Dr.  Beman  announced  that  I  had  been  chosen  Moderator,  I 
walked  towards  him,  with  my  back  to  Dr.  Elliott.  When  I  had  taken 
my  station,  I  did  not  address  the  Moderator,  but  the  meeting.  I  stood 
quartering  towards  the  Moderator,  my  arm  resting  on  the  west  side  of 
the  pew,  as  I  am  a  little  lame.  By  turning  a  little,  I  could  see  the  great 
mass  of  both  the  New  and  Old-school  brethren.  I  was  at  the  east  end  of 
the  pew  in  which  I  sat,  and  Mr.  Cleaveland  was  in  the  pew  behind  me. 
There  were  some  persons  east  of  him  in  the  slip.  When  he  made  his 
suggestion  or  statement,  his  face  was  turned  towards  the  Moderator,  but 
he  did  not  address  the  Moderator.  First  he  made  a  preamble,  which 
was  followed  by  his  motion.  He  put  the  motion  to  the  Assembly.  It  is 
usual  for  a  Moderator  to  take  his  seat  near  the  pulpit.  I  did  not  take 
mine  there,  because  a  paper  was  put  into  my  hands,  signed  by  the  Presi- 
deni  of  the  Board  of  Trustees  of  the  Church,  giving  permission  for  the 
liouse  to  be  occupied  by  the  Assembly  organized  under  the  Moderator  and 
clerks  of  1837,  but  by  no  other.  No  disturbance  was  wished,  and  I 
feared  tiiat  an  attempt  to  take  the  Moderator's  chair  might  create  an 
improper  disturbance.  I  did  not  know  but  that  the  trustees  had  placed 
men  there,  to  prevent  my  taking  the  seat.  It  is  usual  to  take  that  seat  in 
organizing  the  Assembly,  but  I  don't  know,  whether  it  would  not  have 
l)een  a  greater  violation  of  order  to  attempt  to  take  it.  It  is  unusual  to 
organize  the  Assembly  standing  in  the  aisle,  but  not  altogether  without 
precedent.     I  thought  it  imprudent  and  unbecoming  to  attempt  to  take 


TESTIMONY  FOR  THE  RELATORS.  J 05 

the  Moderator's  chair.  The  resolution  did  not,  that  I  know  of,  refer  to 
that  chair  in  particular,  more  than  to  any  other  part  of  the  house.  It  was 
from  motives  of  prudence  that  I  did  not  take  the  chair.  I  took  the  sta- 
tion that  I  did,  in  order  that  there  might  be  no  interruption  in  organizing 
the  Assembly.  We  could  thus  do  it  more  speedily,  and  with  less  dis- 
turbance. My  reasons  were  prudential  ones.  I  thought  that  Dr.  Elliott 
would  not  resign  the  chair,  although  he  is  a  very  polite  man. 

Something  was  going  on  in  the  other  part  of  the  church,  during  these 
proceedings,  and  there  was  a  great  deal  of  noise  and  confusion.  When 
J)v.  Patton  offered  his  resolution  there  was  considerable  noise.  This  was 
partly  behind  the  Moderator,  and  around  him.  While  Mr.  Cleaveland 
had  the  floor,  there  was  a  very  great  noise.  Some  one  said  to  the  Mode- 
rator, "Why  don't  you  put  him  down  ?"  and  there  was  a  great  stamping 
and  scraping.  After  the  motion  appointing  Dr.  Beman  Moderator  was 
put,  there  was  apparently  a  calm.  The  brethren  of  the  Old-school  looked 
on  in  a  kind  of  silent  astonishment.  There  was  no  further  outbreaking 
of  noise,  until  notice  of  the  adjournment  was  given,  and  the  announce- 
ment to  commissioners,  who  had  not  yet  presented  their  commissions, 
had  been  made:  then  there  was  a  great  shout,  and  clapping  and  hissing 
from  the  gallery,  which  I  had  not  anticipated.  We  did  not  obey  the 
cries  of  order;  we  acted  on  the  principle  that  we  had  superseded  the 
JVIoderator  and  clerks,  and  were  going  on  under  another  organisation. 
There  vvere  calls  of  order  from  members  of  the  body,  but  we  did  not  obey 
those.  We  paid  no  attention  to  cries  of  order,  before  the  Assembly  was 
fully  organized.  The  number  of  members  of  all  classes  that  were  pre- 
sent, before  we  left  Philadelphia,  whose  names  were  upon  our  roll,  was 
about  two  hundred  and  eighty.  I  did  not  say  the  New-school  roll,  but 
the  roll  of  the  Assembly.  Most  of  these  were  present  at  the  first  meet- 
ing, but  we  received  some  afterwards.  I  should  think  more  than  one 
hundred  voted  on  the  question  of  adjournment.  The  voting  on  the  dif- 
ferent questions  was  louder  than  was  necessary  or  proper,  but  there  was 
no  other  disturbance  than  this  in  our  part  of  the  house.  When  these  pro- 
ceedings began,  most  of  the  members  were  sitting,  but  after  I  stepped  into 
the  aisle,  some  rose  up  from  their  seats.  I  noticed  on  the  west  side,  some 
who  had  got  up  on  the  seats.  I  cannot  say  that  the  most  were  on  their 
feet.  I  cannot  tell  what  length  of  time  elapsed  from  Dr.  Beraan's  taking 
his  stand  in  the  aisle,  until  the  adjournment,  but  I  suppose  there  was  time 
enough  to  put  all  the  motions:  1  should  think  not  less  than  ten  minutes. 
The  proceedings  were  carried  on  with  considerable  rapidity — as  fast  as 
they  could  be  distinctly  attended  to.  Our  object  was  to  get  through  as 
speedily  as  we  could  with  propriety.  The  design  of  all,  I  presume,  was 
to  make  the  time  as  short  as  was  consistent  with  the  attainment  of  our 
purpose.  When  we  went  out,  I  presume  we  left  the  body  that  had  sat 
before  me,  with  Dr.  Elliott  and  Mr.  Krebs,  in  their  places,  but  I  did  not 
look  back.  I  don't  know  how  many  went  with  us  to  the  First  Presby- 
terian Church.  Some  time  afterwards  we  had  about  one  hundred  and 
thirty — perhaps  a  few  more  or  less:  I  am  not  positive. 

il/r.  Preston.    Was  your  election  entirely  unexpected  ? 

Mr.  Meredith.  Every  ecclesiastical  preferment  is  entirely  unexpected 
and  undesired. 

14 


IQg  PRESBYTERIAN  CHURCH  CASE. 

Mr.  Preston.  I  should  be  glad  if  the  witness  instead  of  the  counsel 
would  tell  me  so. 

The  question  was  overruled. 

Mr.  Presinn.  I  wish  to  ask  an  explanation  of  Dr.  Fisher  as  to  the 
paper  of  Mr.  Cleaveland,  of  which  he  has  spoken.  Mr.  Cleaveland  said, 
that  *'  we  had  been  advised  by  counsel  learned  in  the  law."  Who  did  he 
mean  by  *'  we?" 

This  question  was  objected  to,  but  admitted  by  the  court. 

Dr.  Fisher.  A  number  of  gentlemen  felt  themselves  aggrieved  by  the 
acts  of  the  Assembly  of  1837,  I  among  the-rest.  I  consulted  a  lawyer, 
and  so  did  others,  to  find  out  how  we  might  get  our  rights.  And  I  and 
others  were  informed  by  lawyers,  that  our  Assembly  must  be  organized 
at  that  time  and  place.  We  went  individually  to  different  lawyers,  in 
different  parts  of  the  country,  as  I  in  my  own  country,  others  in  New 
York,  and  others  in  Philadelphia,  and  were  individually  advised.  I  don't 
know  that  there  was  any  concert  in  the  matter.  TJiose  aggrieved  sought 
how  the)'  might  recover  their  rights.  1  had  been  admitted  to  a  seat,  but 
I  felt  that  when  an  old  brother,  such  as  Dr.  Richards,  President  of  the 
Seminary  of  Auburn,  was  excluded,  I  was  aggrieved.  When  any  one 
member  suffered,  I  suffered. 

Re-examined  by  Mr.  Randall.  There  was,  at  all  times  a  constitu- 
tional quorum  present  in  our  Assembly.  Nineteen,  I  believe,  is  the 
number  required  to  form  a  quorum.  (Some  one  mentioning  that  the  nam 
ber  required  was  fourteen,)  I  thought  that  it  had  been  changed  to  nineteen. 

Court  adjourned  till  four  o'clock. 

MONDAY  AFTERNOON— 4  o'clock. 
Dr.  Fisher. — Cross-examination  continued  by  Mr.  Preston.  We 
called  the  roll  every  morning — the  whole  roll,  including  the  names  of 
the  gentlemen  who  remained  in  the  Church  in  Ranstead  Court.  I  cannot 
tell  how  many  ever  answered.  No  investigation  on  this  subject  was 
made  in  the  Assembly.  I  stated  this  morning  that  nineteen  were  a  quo- 
rum; but  1  find  that  the  rule  requires  only  fourteen  or  more,  one-half 
thereof  being  ministers.  This  rule  is  applicable  to  the  organization  of  the 
Assembly.  I  don't  know,  except  from  the  Constitution,  what  number  is 
required  for  a  quorum;  but  from  the  Constitution,  I  should  say  that  with 
fourteen  we  could  always  proceed  to  business.  1  have  known  Synods  and 
Presbyteries  to  carry  on  their  business  without  a  majority  being  present.  I 
can  say,  with  a  good  degree  of  confidence,  that  some  of  the  last  acts  of  the 
Assembly  of  1835  were  performed  without  a  majority  of  those  who  had 
been  on  the  floor  being  present.  The  roll  is  called  every  morning  unless 
this  is  dispensed  with.  At  the  dissolution  of  the  Assembly  I  believe  it 
was  not  called.  I  think  at  many  of  the  Assemblies  where  I  have  been, 
the  roll  has  not  been  called  at  the  close,  or  the  absentees  marked.  It  is  a 
general  practice,  but  there  have  been  many  exceptions  to  it.  I  was  or- 
dained by  the  West  Consociation  of  Fairfield,  Connecticut,  and  there  I 
remained  for  four  years.  I  received  a  call  to  preach  to  the  Presbyterian 
congregation  at  Morristown,  thirty  years  ago  this  spring,  and  had  the 
usual  constitutional  questions  put  to  me,  which  I  answered.  My  ordina- 
tion in  Connecticut  was  by  a  Consociation  composed  of  clerical  and  lay 


TESTIMONY  FOR  THE  RELATORS.  1Q7 

delegates.     The  General  Associations  of  Massachusetts,  Connecticut,  and 
New  Hampshire,  still  continue  to  exist. 

Ee-examined  by  Mr.  Randall.  It  is  usual  for  clergymen  to  join  the 
Presbyterian  Church  in  the  same  way  that  I  did.  I  could  mention  a 
number  of  such  instances,  where  they  have  came  from  bodies  in  corres- 
pondence with  the  General  Assembly.  Dr.  Cuyler  and  Dr.  Junkin  were 
received  in  this  manner.  It  is  not  customary  to  re-ordain  in  any  case, 
but  they  go  through  a  formula  of  examination,  if  they  do  not  come  from 
bodies  in  correspondence  with  the  Assembly.  Ordination  in  our  Church 
is  the  setting  apart  to  the  Gospel  ministry,  by  prayer  and  the  laying  on 
of  the  hands  of  the  Presbytery.  If  a  person  thus  ordained  has  no  charge, 
he  is  styled  an  evangelist.  When  a  person  not  ordained  is  called  to  a 
congregation,  he  is  first  ordained,  and  then  pronounced  to  be  installed. 
When  he  has  already  been  ordained,  the  ceremony  of  installation  is  per- 
formed, and  the  questions  are  put,  but  there  is  no  laying  on  of  hands,  and 
no  re-ordination.  I  do  not  know  whether  Dr.  Janeway  was  in  the  Dutch 
Church  before  he  entered  the  Presbyterian.  I  joined  the  latter  Church 
in  1809,  and  he  then  was  a  member  of  it.  He  was  pastor  of  a  Church  ia 
Philadelphia,  and  I  think  clerk  of  the  General  Assembly.  Ordained 
clergymen,  on  joining  the  Presbyterian  Church,  are  never  re-ordained, 
though  they  are  sometimes  examined. 

Rev.  Robert  Adair — sworn.  I  am  a  minister  of  the  Presbyterian 
Church,  and  pastor  of  a  church  in  Fourth  street,  between  Arch  and  Mar- 
ket, where  we  are  worshiping  temporarily  in  the  Academy.  I  attended 
the  Assembly  of  1838.  I  went  to  the  place  where  it  was  to  meet,  the 
Seventh  Presbyterian  church,  or  the  Tabernacle — I  can't  say  precisely  at 
what  time,  but  not  very  long  before  the  meeting.  The  house  was  then 
well  filled,  but  I  succeeded  in  getting  a  seat  about  midway  of  the  church, 
on  the  west  side  of  the  middle  aisle.  At  the  close  of  the  usual  services, 
the  Moderator  announced,  that  immediately  after  the  benediction,  he 
would  constitute  the  Assembly,  and  accordingly  he  came  down  and  con- 
stituted it  with  prayer.  After  he  had  thus  constituted  it,  Dr.  Patton,  of 
New  York,  rose,  and  intimated  that  he  had  some  resolutions  which  he 
wished  to  offer,  I  don't  know  precisely  what  he  said.  The  Moderator 
told  him  he  was  out  of  order,  as  the  first  business  was  the  report  of  the 
clerks  upon  the  roll.  Dr.  Patton  said,  that  his  object  was  to  complete  the 
roll.  The  Moderator  replied,  that  the  clerks  were  on  the  floor.  After 
this  there  was  more  conversation  between  them,  and  Dr.  Patton  appealed 
to  the  house.  The  Moderator  declared  the  appeal  out  of  order,  and  Dr. 
Patton  took  his  seat.  The  clerks  then  proceeded  with  the  roll.  After 
they  had  ended.  Dr.  Mason  rose,  with  a  bundle  of  papers  in  his  hand,  and 
said  something  to  the  Moderator  in  regard  to  what  they  were.  I  don't 
recollect  what  he  said,  only  that  he  had  a  bundle  of  papers  of  which  he 
made  a  tender.  After  some  questions  had  been  asked,  to  which  he  res- 
ponded, the  Moderator  pronounced  him  out  of  order.  Dr.  Mason  said, 
that,  with  great  deference  to  the  chair,  he  must  appeal  from  that  decision. 
He  appealed,  but  the  Moderator  told  him  his  appeal  was  out  of  order, 
and  he  took  his  seat.  Dr.  Elliott  then  announced,  that  if  there  were  any 
commissioners  who  had  not  presented  their  commissions,  that  was  the 
proper  time  to  present  them.  Mr.  Squier  then  rose,  and  intimated  that 
he  had  handed  his  conTmission  to  the  clerks,  and  that  they  had  refused  it; 


jQg  PRESBYTERIAN  CHURCH  CASE. 

and  he  now  claimed  a  seat.  A  conference  took  place  between  him  and 
the  Moderator,  after  which  the  latter  said  to  him,  "  We  do  not  know  you, 
Sir,"  and  Mr.  Squier  took  his  seat.  Then  Mr.  Cleaveland  rose,  and  after 
some  remarks,  the  purport  of  which  I  don't  know,  made  an  allusion  to 
the  importance  of  securing  a  constitutional  organization,  at  that  time  and 
place.  He  then  moved  that  Dr.  Beman  should  be  temporary  Moderator, 
and  this  motion  was  put  and  carried.  Dr.  Beman  came  out  of  the  pew 
into  the  middle  aisle,  and  said  that  the  next,  or  the  first  business  was  the 
nomination  of  clerks.  A  nomination  was  made  of  Dr.  Mason  and  Mr. 
Gilbert;  the  motion  was  put,  and  was  carried.  Afterwards  the  choice  of 
a  Moderator  was  announced  as  the  next  business,  and  nominations  were 
called  for.  Dr.  Fisher  was  nominated,  and  the  question  was  put  and  car- 
ried. So  as  to  the  appointment  of  regular  clerks.  Dr.  Mason  and  Mr. 
Gilbert  were  nominated,  and  the  question  was  put  and  carried.  After 
this,  there  was  a  motion  made  to  adjourn,  and  this  also  was  carried.  Dr. 
Fisher  then  announced,  that  the  Assembly  would-  now  proceed  to  the 
First  Presbyterian  Church,  and  that  if  there  were  any  con;imissioners 
there,  who  had  not  presented  their  commissions,  they  should  avail  them- 
selves of  that  opportunity  to  present  them.  I  can't  say  whether  all  these 
questions  were  put  distinctly,  and  in  an  audible  voice;  my  presumption 
at  the  time  was  that  they  were.  It  appeared  to  me  at  the  time  that  they 
were  put  in  the  usual  mode  of  presenting  questions.  I  have  known  other 
Moderators  to  put  questions  less  distinctly  and  audibly  than  these  were 
put. 

Mr.  Randall  read  from  the  Minutes  of  1835 — first  from  page  22,  the 
record  of  a  motion  carried  by  a  vote  of  yeas  130,  and  nays  78;  and  then 
from  page  32,  the  record  of  a  motion  carried,  by  yeas  76,  and  nays  15, 
to  show  thatresolutions  were  sometimes  adopted,  without  a  majority  of  the 
members  of  the  Assembly  being  present  and  voting. 

Mr.  Jidair — examination  continued.  I  could  not  see  what  number 
of  members  voted.  My  position  was  about  midway  from  the  pulpit,  on 
the  west  side  of  the  middle  aisle.  1  heard  some  negative  voices.  They 
seemed  to  come  from  the  direction  of  the  Moderator,  or  from  a  point  a 
little  to  the  south  of  south-east  from  him.  I  don't  know  whether  I  was 
sitting  north  or  south  of  Dr.  Fisher.  I  was  about  opposite  to  Dr.  Beman, 
when  he  came  out  into  the  aisle.  There  were  ladies  in  the  pew  immedi- 
ately in  the  rear  of  me.  I  cannot  say,  that  the  noes  came  from  a  part  of 
the  house  distinct  from  that  from  which  the  ayes  came.  My  impression 
at  the  time  was,  that  the  negatives  came  from  some  persons  in  the  aisle. 
They  seemed  to  come  from  a  point  a  little  south  of  south-east  from  myself. 
I  was  the  second  person  from  the  door  of  the  pew. 

Cross-examined  by  Mr.  Ingersoll.  I  came  out  of  the  church  with 
the  body  of  my  friends.  They  left  the  pews  which  they  had  occupied, 
promiscuously,  as  a  congregation  usually  do.  I  do  not  recollect  whether 
I  was  in  the  lead  of  the  column.  I  was  not  a  member  of  the  Assembly 
of  1S3S.  I  accompanied  to  the  First  Presbyterian  Church  those  who 
removed.  I  cannot  say  how  long  it  was  from  the  time  that  Dr.  Beman 
took  his  station,  till  the  adjourninent  took  place.  My  interest  in  the  pro- 
ceedings was  so  absorbing,  that  I  could  not  take  any  note  of  time.  When 
the  Moderator  declared  the  appeal  out  of  order,  no  appeal  was  taken  from 
his  decision.     In  our  courts  nothing  of  this  kind  was  ever  heard  of. 


TESTIMONY  FOR  THE  RELATORS.  JQQ 

Mr.  Ingersoll.  What  could  have  manifested  Dr.  Mason's  acquiescence 
in  the  Moderator's  decision,  more  clearly  than  his  taking  his  seat? 

Mr.  Adair.  There  was  an  usurpation  of  authority  on  the  part  of  the 
Moderator,  that  precluded  any  attempt  to  recover  the  rights  of  the  mem- 
bers, without  resorting  to  an  appeal  to  the  house.  The  rights  secured  by 
our  book  had  been  invaded. 

Mr.  Ingersoll.  Suppose  a  member  had  moved  that  the  Moderator 
should  take  a  drink  of  water;  and  he  had  decided  the  motion  out  of  order, 
and  also  an  appeal  from  that  decision  out  of  order,  what  would  have  hap- 
pened then  ? 

Mr.  Adair.  The  house  would  treat  such  a  person  as  a  lunatic;  but 
here  there  was  a  pertinence  in  the  I'esolution  offered. 

'Mr,  Ingersoll.  0  yes,  that  is  your  opinion,  but  I  differ  from  you, 
though  perhaps  I  do  not  know  so  much  as  you  do  of  the  lex  parliamenti. 

Mr.  Adair.  I  have  never  heard  of  such  a  thing,  as  an  appeal  from  the 
judgment  of  the  presiding  officer,  that  an  appeal  was  out  of  order.  In  our 
movement  from  the  house,  there  was  a  confusion  and  uproar  in  the  galle- 
ries, but  nothing  of  the  kind  on  the  part  of  the  members  of  the  Assembly. 
By  their  conversation,  I  should  judge,  there  was  a  great  deal  of  excite- 
ment among  them,  but  there  was  nothing  indecorous;  they  only  seemed 
excited  and  very  much  interested.  I  can't  say  whether  any  preparation 
appeared  to  have  been  made  before-hand,  when  I  entered  the  First  Pres- 
byterian Church. 

By  Mr.  Hubbell.  There  were  others  besides  members  on  the  floor  of 
the  church  in  Ranstead  Court — both  males  and  females,  as  there  always 
are.  There  were  spectators  sitting  among  the  members,  as  usual  in  the 
morning,  other  arrangements  not  being  made  until  afternoon.  I  felt  at 
liberty  to  take  any  seat  I  found  unoccupied.  The  house  was  unusually 
crowded  at  an  early  hour,  but  I  have  seen  it  crowded  commonly  on 
such  occasions.  The  galleries  were  filled.  I  entered  first  at  the  north- 
east door,  and  then  at  the  door  immediately  north  of  the  pulpit.  I  had 
before  been  up  in  the  gallery,  and  had  taken  my  stand  by  the  organ. 
From  there  I  saw  seats  below  that  were  more  convenient,  and  availing 
myself  of  this  information,  I  went  down  and  took  one  of  them.  I  could 
estimate  the  number  of  negative  voices  only  by  the  sound.  The  negative 
sound  was  much  smaller  than  the  other.  I  was  the  distance  of  one  seat 
from  the  aisle.  Mr.  Cleaveland  was  a  little  east  of  south-east  from  me, 
when  he  made  his  motion.  I  mingled  among  the  commissioners  in  the 
First  Presbyterian  Church,  on  the  outer  part,  among  the  lobby  members 
as  they  are  called.  A  place  for  the  lobby  members  was  not  marked  out 
at  that  time;  I  do  not  know  whether  any  was  designated  afterwards.  I 
don't  recollect  whether  there  was  a  discussion  on  our  arrival,  in  the  First 
Presbyterian  Church,  in  regard  to  these  proceedings.  I  believe  the 
Assembly  was  constituted  with  prayer,  and  went  on  regularly  to  the  roll, 
and  to  vote  on  Dr.  Patton's  resolutions. 

He-examined  hy  Mr.  Randall.  I  have  never,  in  an  ecclesiastical  body, 
known  a  case  of  a  Moderator's  refusing  to  put  an  appeal. 

Mr.  Sergeant.  May  not  an  appeal,  under  some  circumstances,  be  out 
of  order  ? 

Mr.  Adair.    I  think  it  may. 

Mr.  S.    Whose  busihess  then  is  it  to  declare  it  out  of  order  ? 


110  PRESBYTERIAN  CHURCH  CASE. 

Mr.  A.    I  have  no  experience  in  reference  to  that  matter. 

Mr.  S.  Suppose  an  appeaj  out  of  order,  does  it  not  belong  to  the  Mode- 
rator to  declare  it  so? 

Mr.  A.    This  would  be  making  the  Moderator  judge  in  his  own  case. 

Mr.  S.  But  if  an  appeal  is  out  of  order,  who  is  to  decide  in  the  first 
instance? 

Mr.  A.  The  house  will  decide:  they  will  say  the  appeal  is  out  of  order; 
but  I  have  gone  to  the  limits  of  my  knowledge  on  these  points. 

Mr.  S.  I  want  to  know  whether  it  is  not  the  business  of  the  presiding 
officer  to  decide  in  the  first  instance,  that  an^appeal  is  out  of  order? 

Mr.  A.    No,  Sir:  the  house  must  decide. 

Mr.  S.  Do  you  mean  to  say  that  the  General  Assembly  is  difierent 
from  all  other  deliberative  bodies? 

Mr.  A.  We  have  certain  rules,  but  I  don't  know  how  they  compare 
with  those  of  other  bodies. 

Mr.  S.  Suppose  an  appeal  is  out  of  time:  suppose  that  it  is  not  made 
until  the  next  day — how  then? 

Mr.  A.  The  Moderator  must  decide  in  the  first  instance,  and  the  good 
sense  of  the  man  who  makes  the  appeal  will  prevent  any  difficulty. 

Mr.  S.  You  mean  to  say,  that  the  Moderator  must  decide  in  the  first 
instance,  and  that  the  good  sense  of  the  man  must  afterwards  help  him 
somehow  or  other — do  you  ? 

Mr.  A.    Our  books'make  an  appeal  always  in  order. 

Mr.  S.     Is  there  nothing  said  as  to  the  proper  time  and  place  ? 

Mr.  A.     I  do  not  know. 

Mr.  Preston.  If  a  Moderator  decides  an  appeal  out  of  order,  who  is 
to  determine  the  propriety  of  his  decision  ? 

Mr.  A.  The  house  must  decide;  and  in  such  a  case,  if  the  Moderator 
refused,  the  clerks  ought  to  put  the  question.  The  sole  question  that 
would  then  come  before  the  house,  would  be  in  regard  to  the  right  of  ap- 
peal. 

Mr.  P.  Suppose  I  made  a  motion,  and  the  Moderator  declared  it  out 
of  order,  and  I  then  appealed,  and  my  appeal  also  was  declared  out  of  or- 
der, what  question  would  go  before  the  house? 

Mr.  A.  I  cannot  answer:  these  matters  are  beyond  my  province. 
Such  a  case  has  never  occurred.  It  would  require  the  opinion  of  some  of 
our  aged  patriarchs. 

Mr.  P.  It  actually  occurred  in  this  instance.  Had  the  gentleman  a 
right  to  put  any  other  question  to  the  house,  than  that  in  regard  to  the 
Moderator's  decision? 

Mr.  A.  The  question  should  be  either  to  reverse,  or  to  confirm  the 
Moderator's  decision. 

Mr.  P.  Did  the  question  put  by  Mr,  Cleaveland  either  reverse  or 
confirm  Dr.  Elliott's  decision  ? 

Mr.  A.  The  house  was  not  reached:  it  did  not  get  access  to  that  ap- 
peal. The  Moderator  declared  the  appeal  to  the  house  out  of  order. 
There  was  no  appeal  from  him  on  that  question.  The  house  did  not  de- 
cide on  the  point  of  order. 

Mr.  Randall.  Here  is  No,  29  of  the  "  General  Rules  for  Judicato- 
ries."    Please  to  read  it. 


TESTIMONY  FOR  THE  RELATORS.  HI 

Mr.  A. — reading — 

"If  any  member  consider  himself  aggrieved  by  a  decision  of  the  Moderator,  it  shall 
be  his  privilege  to  appeal  to  the  judicatory;  and  the  question  on  such  an  appeal  shall  be 
taken  without  debate." 

I  thought  it  impossible  that  an  appeal  should  be  declared  out  of 
order.  No  time  is  specified  for  an  appeal  from  the  decision  of  the  chair; 
an  appeal  is  always  in  order.  I  know  of  no  usage  giving  a  clerk  a  right 
to  put  a  question;  I  only  supposed  such  a  case. 

Cross-examined  by  Mr.  Preston.  These  rules  are  usually  adopted 
at  the  commencement  of  the  session  of  each  Assembly.  I  suppose  they 
vvere  adopted  in  the  First  Presbyterian  Church,  but  I  am  not  certain. 

Dr.  Cathcart. — recalled.  After  an  appeal  is  made,  it  is  sometimes 
wjthdrawn,  but  if  the  appellant  persist  in  wishing  to  have  it  put,  the 
Moderator  is  obliged  to  put  it.  I  never  knew  an  instance  to  the  con- 
trary, until  in  the  Assembly  of  1838.  When  an  appeal  is  put  and  pre- 
vails, the  Moderator's  decision  is  reversed.  This  was  an  extraordinary 
case.  Neither  the  Moderator  or  clerks  had  a  right  to  reject  any  commis- 
sions. It  was  for  the  house  to  decide  whether  the  commissions  were 
valid,  though  it  is  true  that  the  Assembly  of  1837,  attempted  to  bind  the 
Assembly  of  1838,  hand  and  foot. 

Mr.  Randall  offered  the  minutes  of  1837,  p.  498. 

"  Resolved,  That  calling  the  roll  previously  to  dissolving  the  Assembly  be  dispensed 
with." 

Mr.  Archibald  McElroy — affirmed.  I  am  connected  with  the  press, 
as  reporter  for  the  United  States  Gazette.  I  did  not  attend  at  the  Church 
in  Ranstead  Court  very  early,  on  the  morning  of  the  organization  of  the 
Assembly  of  1838.  When  I  went  in,  the  Moderator  had  nearly  finished 
his  discourse.  I  took  a  seat,  and  waited  until  he  was  done.  He  an- 
nounced that  he  would  descend  and  constitute  the  Assembly,  which  he 
did,  by  prayer.  After  the  prayer,  Dr.  Patton  rose,  and  requested  per- 
mission to  offer  a  paper  which  he  held  in  his  hand.  The  Moderator  told 
him  that  he  was  out  of  order;  that  the  first  business  was  the  report  of  the 
clerks  upon  the  roll.  He  appealed,  and  the  Moderator  declared  the  ap- 
peal out  of  order.  Dr.  Patton  then  took  his  seat.  The  clerk  reported 
the  roll,  which,  as  I  afterwards  ascertained,  had  upon  it  upwards  of  two 
hundred  names.  The  Moderator  then  said,  that  if  there  were  any  com- 
missions which  had  not  been  presented  to  the  clerks,  then  was  the  time 
to  present  them.  Dr.  Mason  rose,  holding  in  his  hand  certain  commis- 
sions, which  he  attempted  to  offer.  The  Moderator  asked  the  question, 
where  they  were  from.  He  answered,  from  the  Synods  of  Utica,  Gene- 
va, Genesee,  and  the  Western  Reserve.  The  Moderator  decided  that  he 
was  out  of  order,  and  also  that  an  appeal  which  he  took,  was  out  of  order. 
Dr.  Mason,  in  the  meantime,  had  made  some  Remarks  which  I  don't  re- 
collect. Mr.  Squier  then  rose  and  said  that  his  commission  had  been  pre- 
sented to  the  clerks  and  rejected,  and  he  now  demanded  his  seat.  The 
Moderator  decided  that  he  was  out  of  order;  he  appealed,  and  the  same 
course  as  before  was  gone  through.  The  conversation  I  did  not  under- 
stand. Mr.  Cleaveland  rose,  with  a  paper  in  his  hand,  that  related  to  the 
organization  of  the  Assembly.  What  I  heard  was  the  same  that  has 
been  given  in  evidence  by  others.  He  moved  that  a  Moderator  should 
be  chosen,  and   that  Qr.  Beman  should  take  the  chair.     Dr.   Beman 


122  PRESBYTERIAN  CHURCH  CASE. 

accordingly  took  the  chair.  He  then  stated  that  the  next  business 
was  the  nomination  of  clerks.  This  was  gone  through  with  in  the 
regular  way,  and  Dr.  Mason  and  Mr.  Gilbert  were  chosen  clerks.  Af- 
terwards he  said,  that  the  next  business  was  the  elecion  of  a  Mode- 
rator, but  I  did  not  hear  him  call  for  nominations.  This  was  gone 
through  with,  also,  in  the  regular  way,  and  Dr.  Fisher  was  elected 
Moderator.  After  that  election,  Stated  and  Permanent  Clerks  were 
chosen,  and  after  this.  Dr.  Fisher  announced  that  the  Assembly  had  ad- 
journed to  the  First  Presbyterian  Church.  During  the  time  that  these 
motions  were  made,  there  was  considerable  noise  and  confusion.  I  was 
in  the  east  aisle,  about  half  way  up;  I  went  in  at  the  north  door.  I  don't 
know  what  was  Dr.  Beman's  position  before  he  rose,  or  until  he  had 
taken  his  place  in  the  aisle;  I  was  to  the  north  of  him.  I  moved  across 
the  aisle,  and  took  my  stand  on  the  seat  of  one  of  the  pews.  I  did  not, 
see  Dr.  Beman;  his  friends  were  between  him  and  me.  I  came  into  the 
house  after  the  sermon  had  commenced. 

I  heard  some  of  the  questions  reversed:  I  cannot  say  which.  I  thought 
there  were  noes  on  some  of  them.  I  don't  recollect  whether  they  were 
all  reversed,  but  I  have  a  distinct  impression  that  they  were,  and  that  I 
heard  nays.  I  cannot  say  from  what  part  of  the  house  these  negatives 
came.  1  could  hear  the  question  put  very  distinctly.  Dr.  Patton  was 
about  half  way  up  the  church,  and  I  six  or  eight  pews  lower  down.  I 
was  to  the  east  of  him.-  I  first  stood  in  the  east  aisle;  then  on  the  seat  of 
a  pew  west  of  this  aisle.  Dr.  Patton  was  south-west  of  me,  in  a  diagonal 
direction.  My  position  in  regard  to  the  others  was  about  the  same;  Mr. 
Cleaveland,  however,  was  a  little  farther  off.  The  noise  never  prevented 
me  from  knowing  what  was  going  on.  The  noise  consisted  of  the  Mode- 
rator's calling  to  order,  and  rapping  with  his  hammer;  and  a  request  was 
made  by  some  gentleman,  who  rose,  that  he  would  let  them  go  on.  Af- 
ter Mr.  Cleaveland  had  finished  his  paper,  or  his  remarks,  and  Dr.  Beman 
had  been  chosen  Moderator,  some  gentleman  rose  and  said,  "Oh,  let 
them  proceed."  The  Moderator  then  sat  down.  This  gentleman  was 
in  the  south-west  quarter  of  the  house.  I  did  not  see  him,  but  I  knew 
his  voice.  It  was  Mr.  Breckinridge  of  Baltimore.  This  stopped  the 
hammer.  After  his  interposition,  the  Moderator  was  quiet,  and  the  ham- 
mer too. 

Cross-examined  hy  Mr.  Hubbell.  I  am  a  member  of  the  Franklin- 
street  Church — Mr.  Adair's.  Franklin-street  is  west  of  Franklin  Square. 
We  are  now  worshipping  in  the  Academy.  I  arrived  at  the  Seventh 
Church  near  the  conclusion  of  the  sermon — probably  about  twelve  o'clock. 
I  remained  about  ten  minutes  at  that  church,  after  the  others  had  gone, 
and  did  not,  at  that  time,  go  to  the  First  Presbyterian  Church.  1  attended 
to  take  notes  of  the  proceedings.  I  attended  the  two  bodies,  at  each 
church,  every  day,  to  take  notes.  I  did  not  hear  a  mingling  of  ayes  and 
noes,  upon  any  of  the  questions.  Some  of  those  who  were  immediately 
around  me,  when  I  was  listening  to  Mr.  Cleaveland,  were  members,  and 
some  were  spectators.  On  my  left  they  were  principally  members,  and 
on  my  right,  spectators;  the  most  of  them  ladies.  None  of  the  specta- 
tors, that  I  heard,  joined  in  the  voting.  I  did  not  join  my  voice  to  those 
of  the  members.  I  think  I  may  safely  say,  that  none  whom  I  knew  to 
be  spectators  voted.     I  do  not  know  that  all  who  voted  were  members. 


TESTIMONY  FOR  THE  RELATORS.  113 

I  saw  among,  the  spectators  a  number  of  persons,  with  whom  I  was 
acquainted,  but  1  cannot  mention  any  of  them  now.  All  were  seated 
when  I  went  into  the  church,  with  a  very  few  exceptions.  After  the 
proceedings  commenced,  some  rose  in  my  neighborhood,  I  was  not 
seated  at  all.  I  stood  up  on  the  seat  of  one  of  the  pews,  that  I  might  see. 
When  I  took  my  place  on  the  seat,  I  think  either  Dr.  Patlon  or  Dr. 
Mason  was  reading.  There  were  three  or  four  other  persons  standing  on 
the  seat  of  the  pew  in  which  I  was.  This  was  after  I  had  altered  my 
position.  I  altered  it  that  I  might  see  and  hear  better.  Dr.  Beman  when 
be  took  the  chair,  in  the  aisle,  was,  it  may  be,  ten  or  fifteen  feet  from  me. 
I  did  not  take  particular  notice  of  the  distance.  Mr.  Cleaveland  moved 
that  Dr.  Bemah  should  take  the  chair.  When  he  made  that  motion,  I  did 
not  see  ■him;  there  were  persons  standing  between  him  and  me.  He  was 
farther  off  from  me  than  any  of  the  others.  He,  1  think,  was  not  standing 
on  the  seat,  when  he  made  his  motion.  I  thinlc  all  the  persons  between 
Mr.  Cleaveland  and  myself,  were  on  their  feet.  There  may  have  been 
fifty  or  a  hundred  between  us.  Some  were  standing  on  the  seats  and 
some  were  not.  I  do  not  recollect  that  I  took  any  pains  to  look  at  Mr. 
Cleaveland.  I  frequently  write,  listen,  and  talk  at  the  sam.e  time,  but  I 
was  not  writing  or  talking,  at  the  time  of  the  transaction  of  which  I  apeak. 
I  got  upon  the  seat  to  see  and  hear,  but  took  no  special  pains  to  see.  I 
should  have  been  obliged  to  have  gone  very  near  Mr.  Cleaveland,  or  to 
have  asked  some  of  those  who  were  standing  between  us  to  sit  dotvn,  in 
order  to  have  seen  him,  I  can't  say  whether  those  standing  on  the  seats 
were  spectators  or  members,  or  whether  they  had  their  hats  on  or  oflf. 
Those  immediately  engaged  in  the  organization,  Dr.  Beman,  Dr.  Fisher, 
and  the  clerks,  were  all  standing  on  the  floor. 

Rev.  Jimasa  Converse — swo7^n.  I  am  a  minister  of  the  Presbyterian 
Church  from  Virginia,  I  was  present  at  the  organization  of  the  Assem- 
bly of  1838.  I  went  to  the  church  in  Ranstead  Court,  on  the  third 
Thursday  of  May,  between  the  hours  of  nine  and  ten  o'clock,  and  found 
there  a  body,  which,  at  that  time,  appeared  to  have  a  recess.  I  then  left 
the  house,  in  company  with  Mr,  Dickinson.  I  returned  to  it  before  the 
sermon  was  preached,  and  found  that  part  of  the  house  around  the  Mode- 
rator's chair,  densely  occupied.  I  then  went  up  into  the  gallery,  but  on 
reaching  it,  found  that  also  densely  occupied,  by  ladies  and  gentlemen. 
1  therefore  went  back,  and  found  a  seat  under  the  gallery  north  of  the 
door.  After  the  sermon  was  closed,  Dr,  Elliott  announced  that  he  would 
proceed  to  organize  the  Assembly,  and  he  cam.e  down  to  the  front  of  the 
pulpit,  and  made  a  prayer.  The  prayer  being  over,  Dr,  Patton  rose,  and 
proposed  to  ofier  certain  resolutions.  The  Moderator  declared  him  out 
of  order;  then  some  conversation  ensued,  which  I  did  not  hear,  because  of 
the  noise  around  me,  Dr,  Patton,  in  a  respectful  manner,  appealed  from 
this  decision.  The  Moderator  told  him  he  was  out  of  order,  and  Dr. 
Patton  then  took  his  seat.  On  his  being  seated,  the  clerk  read  the  roll, 
or  a  part  of  it;  after  which,  the  Moderator  announced  from  the  chair,  that 
if  any  person  had  not  been  enrolled,  that  was  the  proper  time  to  present 
his  commission.  Dr.  Mason  then  rose  with  some  papers  in  his  hand,  say- 
ing that  he  held  certain  commissions,  and  he  moved  that  the  roll  should 
be  amended,  by  the  addition  of  the  names  from  them.  The  Moderator 
pronounced  him  out  of^rder,  and  there  were  cries  of  order  from  six  or 

15 


114 


PRESBYTERIAN  CHURCH  CASE. 


twelve  voices  round  the  Moderator.  Dr.  Mason  said,  "  With  great 
respect,  I  appeal,"  hut  Dr.  Elliott  told  him  the  appeal  was  out  of  order, 
and  he  took  his  seat.  Then  the  Rev.  Mr.  Squier,  from  the  Presbytery 
of  Geneva,  rising,  demanded  his  seat  in  the  house.  The  Moderater  asked, 
from  what  Presbytery  he  came.  He  answered,  from  the  Presbytery  of 
Geneva.  The  Moderator  asked,  if  that  Presbytery  belonged  to  the 
Synod  of  Geneva;  and  he  replied,  that  it  was  within  the  bounds  of  that 
Synod.  The  Moderator  said,  "  We  do  not  know  you.  Sir."  Mr.  Squier 
then  took  his  seat.  The  Rev.  Mr.  Cleaveland  next  rose,  and  stated  in 
substance,  that  it  was  impossible  to  proceed,  but  that  an  assembly  must  be 
constitutionally  organized  at  that  time  and  place.  He  held  a  paper  in  his 
hand,  but  made  some  remarks  without  reading.  He  then  moved  that  Dr. 
Beman  should  be  Moderator,  until  a  new  one  was  elected,  in  order  to  pro- 
ceed with  the  organization.  This  motion  was  put,  and  carried  by  a  large 
majority.  The  question  was  reversed,  and  there  were  a  good  many  noes. 
Nominations  for  clerks  were  then  called  for,  and  the  Rev.  Dr.  Mason,  and 
the  Rev.  Mr.  Gilbert  were  nominated;  the  question  was  put,  and  they 
were  elected.  Then  nominations  for  a  Moderator  of  the  Assembly  of 
1S38  were  called  for.  Dr.  Fisher  was  nominated,  the  question  was  put 
by  Dr.  Beman,  and  he  was  elected  by  a  large  majority;  and  according  to 
my  recollection,  there  were  several  noes  when  the  question  was  reversed. 
The  next  nominations  were  for  Stated  and  Permanent  clerks.  I  do  not 
think  that  I  heard  Dr.  Fisher  put  this  question.  There  was,  at  the  time, 
some  confusion  in  the  part  of  the  house  where  I  stood,  and  I  was  looking 
another  way.  After  this  election,  there  was  a  motion  made  to  adjourn  to 
the  First  Presbyterian  Church.  This  motion  was  seconded,  put,  and 
carried.  I  am  not  confident,  but  think,  that  Dr.  Fisher  after  the  adjourn- 
ment, announced,  that  if  any  commissioners  had  not  been  enrolled,  they 
should  repair  to  the  place  of  adjournment.  A  scene  of  confusion  then  . 
arose  in  the  galleries,  and  clapping  and  hissing  from  every  side  of  the 
house.  The  Assembly  adjourned,  and  I  think  about  one  half  of  those, 
who  had  occupied  the  seats  where  the  delegates  sat,  left  the  house.  I 
next  saw  those  who  retired, at  the  church  on  Washington  Square.  I  did 
not  go  there  immediately  with  them. 

Cross-examined  by  Mr.  Hubbell. — I  went  to  the  church  in  Ranstead 
Court,  to  hear  the  sermon,  and  see  ni}'^  friends.  I  went,  at  half  past  nine, 
to  meet  some  friends — the  Rev.  Mr.  Hurd  of  the  Synod  of  Mississippi, 
and  some  persons  who  were  classmates  of  mine  in  college,  twenty  years 
ago.  1  stayed  perhaps  for  ten  or  fifteen  minutes,  after  the  adjournment  of 
the  New-school  party  to  the  First  Presbyterian  Church;  or  I  might  not 
have  been  there  more  than  five  minutes.  I  do  not  know  that  I  heard 
Mr.  Breckinridge's  remark.  I  heard  some  remark,  but  what  it  was,  or 
from  whom  it  came,  I  cannot  say.  I  am  a  Presbyterian  clergyman.  I 
was  not  a  delegate  to  the  Assembly.  I  heard  Mr.  Cleaveland  make  a 
statement,  and  it  was  in  substance  that  which  I  have  stated  in  my  narra- 
tive: I  cannot  repeat  the  very  words.  None  of  the  spectators,  to  my 
knowledge,  participated  in  the  voting.  There  were  very  few  spectators 
among  the  members  under  my  observation.  I  did  alter  my  position;  I 
rose  when  other  spectators  were  rising  around  me.  I  do  not  recollect  at 
what  part  of  the  business  this  was,  but  I  think  it  was  when  Mr.  Cleave- 
land wa.s  reading.     Some  rose  around  me,  but  I  do  not  think  there  was  a 


TESTIMONY  FOR  THE  RELATORS.  U5 

general  rising  in  my  neighbourhood.  I  think  I  could  see  Dr.  Beman 
after  he  took  his  seat  in  the  imaginary  chair,  but  don't  remember  dis- 
tinctly. In  the  extreme  north  end  of  the  church,  there  were  some  stand- 
ing up  on  the  seats,  back  of  the  commissioners.  I  saw  among  these,  no 
persons  that  I  recognised  as  commissioners,  but  I  do  not  undertake  to  say 
that  I  recognised  every  commissioner  in  the  house.  I  don't  know  whether 
the  spectators  generally  went  away  with  the  retiring  body.  A  good 
many  went  away,  but  a  good  many  remained  when  I  left  the  church.  I 
did  afterwards  attend,  as  a  spectator,  the  sessions  of  the  body  that  remained, 
preside,  at  present,  in  this  city.  I  then  resided  in  Richmond,  Virginia. 
I  originally  came  from  New  Hampshire.  I  belong  to  a  Presbytery  in 
Virginia,  and  have  no  ecclesiastical  connexion  with  any  Presbytery  here. 
I«m  editor  of  "The  Religious  Telegraph  and  Observer,"  published  in 
this  city.  I  edited  the  same  paper  in  Virginia.  I  have  commented  and 
expressed  my  opinion  on  the  exscinding  measures,  but  not  on  the  Old- 
school  party.  I  have  both  written  and  spoken  my  opinion,  in  regard  to 
the  proceedings  wliich  are  now  the  subject  of  litigation, 
■   Court  adjourned. 

TUESDAY  MORNING,  March  12th.— 10  o'clock. 

Mr.  Charles  H.  Dingee — affirmed.  I  attended  the  General  Assem- 
bly of  1838,  in  Ranstead  Court,  at  its  opening,  as  a  spectator,  I  went  to 
the  church  near  twelve  o'clock.  I  stood  all  the  time,  in  the  north  gal- 
lery of  the  church,  in  front  of  the  organ,  in  the  centre  of  the  house,  as 
regards  east  and  west.  After  the  religious  services,  the  Assembly  was 
constituted  with  prayer  as  usual.  First  after  this  preliminary.  Dr.  Patton 
arose,  and  wished  to  offer  a  preamble  and  resolutions.  The  Moderator 
told  him  he  was  out  of  order.  I  heard  this  distinctly.  He  refused  to 
put  them,  or  allow  them  to  be  read.  Dr.  Patton  remarked,  that  the  pa- 
per in  his  hand,  or  the  resolutions  which  he  wished  to  offer,  related  to 
the  formation  of  the  roll.  The  Moderator  declared  they  were  out  of  or- 
der, as  the  next  business  was  the  report  of  the  clerks  on  the  roll.  Dr. 
Patton  appealed  from  the  decision  of  the  Moderator;  that  appeal  was 
seconded,  but  the  Moderator  declared  it  out  of  order,  and  refused  to  put 
it;  he  said  that  the  clerks  had  the  floor.  Dr.  Patton  reminded  the  Mode- 
rator that  he  had  the  floor  previously  to  the  clerks.  The  roll  was  then 
read  by  one  of  the  clerks — I  think  by  Mr.  Krebs.  After  the  reading  of 
the  roll,  the  Rev.  Dr.  Mason  of  New  York,  moved,  that  the  names  of  the 
commissioners  from  within  the  bounds  of  the  Synods  of  Utica,  Geneva, 
Genesee,  and  the  Western  Reserve,  should  be  admitted  to  the  roll,  and 
at  the  same  time,  he  tendered  their  commissions.  This  motion  was  also 
declared  to  be  out  of  order.  Dr.  Mason  appealed  from  the  decision  of 
the  Moderator,  and  his  appeal  was  seconded.  The  Moderator  then  an- 
nounced, that  if  there  were  any  of  the  commissioners  present,  who  had 
not  yet  presented  their  commissions,  then  was  the  proper  time  to  present 
them.  The  Rev.  Mr,  Squier  rose,  and  informed  the  Moderator,  that  he 
had  tendered  his  commission  to  the  clerks,  and  they  had  refused  it,  and 
he  demanded  that  his  name  should  be  put  on  the  roll.  Mr.  Squier  was 
asked  whether  he  belonged,  I  think,  to  the  Presbytery  of  Geneva,  and 
also  whether  that  Prestj^ytery  was  within  the  bounds  of  the  Synod  of  Ge- 


Ijg  PRESBYTERIAN  CHURCH  CASE. 

neva.  He  answered  in  the  affirmative.  The  Moderator  informed  him, 
"We  do  not  know  you."  Then  Mr.  Cleaveland  of  Detroit  rose,  and 
said,  that,  as  the  Moderator  and  clerks  had  refused  to  do  their  duty,  it  be- 
came necessary  that  then  and  there  the  Assembly  should  be  organized; 
and  that  this  advice  had  been  given  by  counsel  learned  in  the  law.  He 
informed  the  Moderator,  that  without  intending  any  discourtesy  to  him, 
with  the  fewest  words,  and  in  the  shortest  time  possible,  he  would  then 
and  there  organize  the  General  Assembly.  Mr.  Cleaveland  then  moved, 
that  the  Rev!^  Dr.  Beman  should  be  Moderator,  until  another  should  be 
chosen,  and  that  Messrs.  Mason  and  Gilbert  should  be  the  clerks.  Mr. 
Cleaveland  held  a  paper  in  his  hand,  and  he  occasionally  looked  at  it,  but 
certainly  did  not  read  from  it.  I  had  an  opportunity  to  observe  him  dis- 
tinctly. He  did  not,  at  any  time,  appear  to  be  reading  from  this  paper. 
His  resolution  was  seconded,  and  the  question  was  taken  in  both  the  affir- 
mative and  the  negative^  and  was  decided  in  the  affirmative.  After  this. 
Dr.  Beman  rose,  and  came  out  into  the  aisle.  I  then  came  down  out  of 
the  o-allery  into  the  middle  aisle  of  the  church,  and  just  as  I  got  down, 
the  motion  was  made  to  adjourn  to  the  First  Presbyterian  Church, 
and  was  carried.  I  do  not  know  whether  there  were  any  negative  voices 
on  the  election  of  Dr.  Beman.  I  heard  a  very  peculiar  sound  like  an  aye. 
J  know  the  question  was  reversed.  This  motion  was  made  in  an  audible 
voice,  very  distinctly.  I  should  suppose  that  any  individual  in  the  house 
could  have  heard  it.  I  was  as  near  to  the  speaker  as  the  Moderator  was. 
Mr.  Cleaveland  was  standing  in  a  pew  on  the  east  side  of  the  centre  aisle. 
When  he  first  rose,  he  faced  the  Moderator;  afterward,  he  faced  the 
south-west  corner  of  the  church.  He  had  papers  in  his  hand,  and  I  could 
see  the  use  he  made  of  these  papers,  and  when  he  referred  to  them. 

Cross-examined  by  Mr.  Hubbell.  Very  soon  after  he  addressed  the 
Moderator,  Mr.  Cleaveland  turned  his  face  towards  the  south-west  corner 
of  the  church.  When  he  arose  he  addressed  the  Moderator,  and  the  house 
through  the  Moderator.  I  am  not  positive  wdiether  he  had  got  through 
his  preamble  before  he  turned  his  face.  I  left  the  gallery  soon  after  Dr. 
Beman  took  his  place  in  the  aisle — very  soon  after  the  clerks  had  been 
appointed.  There  had  been  no  other  business  transacted.  I  went  im- 
mediately, as  soon  as  I  could  get  down,  into  the  body  of  the  house. 
There  was  an  obstruction  on  the  stairs — two  or  three  ladies  were  going 
down  at  the  same  time.  I  was  perhaps  about  two  or  three  minutes  in  the 
transit.  When  I  got  down  they  were  engaged  in  the  question  of  adjourn- 
ment— this  question  passed  while  I  was  there.  Dr.  Beman,  when  he 
took  his  place  in  the  aisle,  faced,  I  rather  think,  the  south  directly;  but  I 
am  not  positive.  Dr.  Beman  was  presiding  when  I  came  down,  and  put 
the  question  ,of  adjournment,  which  was  then  under  consideration.  I 
have  seen  Dr.  Beman  very  repeatedly,  and  have  heard  him  preach  often. 
Dr.  Beman  put  the  question  of  adjournment.  I  am  not  positive  whether 
he  reversed  it,  but  my  impression  is  that  he  did.  At  that  time  1  was 
anxious  to  get  out  of  the  house.  His  tone  was  loud  enough  to  be  heard 
all  over  the  church.  I  should  say,  that  I  stood  not  more  than  twenty- 
five  feet  off  from  him.  I  had  a  distinct  view  of  him,  when  he  put  the 
question  of  adjournment.  I  think  that  during  the  greater  part  of  his  re- 
marks, Mr.  Cleaveland  faced  the  Moderator,  but  afterwards  his  face  was 
turned  obliquely.     He  stated  that  the  Moderator  and  clerks,  having  re- 


TESTIMONY  FOR  THE  RELATORS.  117 

fused  to  do  their  duty  in  the  organization  of  the  Assembly,  it  became  ne- 
cessary, in  the  shortest  time,  and  with  the  least  disturbance  possible,  then 
and  there  to  organize  the  General  Assembly.  I  know  Mr.  Cleaveland 
very  well  when  I  see"  him.  I  had  known  him  by  sight  before.  He  is 
not  very  large,  but  stout — I  suppose  about  five  feet  eight  inches  in  height; 
he  has  light  hair,  and  is  about  thirty-five  years  of  age,  or  a  little  over.  I 
am  not  positive  in  regard  to  the  language  which  he  used,  when  he  re- 
versed the  question.  I  think  he  said,  "  those  of  a  contrary  opinion." 
This  was  pronounced  in  a  loud  voice;  Mr.  Cleaveland  don't  speak  low 
generally.  I  heard  but  one  response,  and  I  think  that  was  "  Aye'.''  Mr. 
Cleaveland  seemed  somewhat  agitated  when  he  commenced.  I  did  not 
observe  the  paper  shake  very  much  in  his  hand;  or  if  I  did,  I  do  not  re- 
collect that  fact.  His  voice,  when  he  commenced,  had  something  pe- 
culiar in  it,  and  was  like  that  of  a  man  agitated. 

Bt/  Mr.  Ingersoll.  I  made  no  note,  at  the  time,  of  these  proceedings. 
I  am  connected  with  the  Third  Presbyterian  Church  in  this  city— Mr. 
Brainerd's,  and,  formerly,  Dr.  Ely's.  I  was  anxious  to  get  out  of  the 
house  in  Ranstead  Court,  to  get  a  seat  at  the  other  church.  Before  the 
vote  was  taken,  there  were  a  good  many  standing  about  where  I  was,  im- 
mediately in  front  of  the  gallery.  When  I  came"  out  of  the  church,  I  was 
a  little  ahead  of  the  main  body,  and  walked  very  fast,  and  I  got  a  seat. 
The  sexton  had  unlocked  the  door,  while  I  was  in  the  Square.  I  think  I 
saw  him  going  before  us.  I  am  not  positive,  but  I  think  I  had  spoken  to 
him  that  morning — whether  at  the  church  in  Ranstead  Court  or  not,  I 
can't  say.  I  did  not  hear  Mr.  Cleaveland  say,  in  the  First  Presbyterian, 
Church,  that  he  had  been  agitated. 

Mr.  Randall.     The  witness  has  fallen  into  a  slight  inaccuracy.     The 
first  motion  you  say  was  made  by  Dr.  Patton,  the  second  by  Dr.  Mason — 
Mr.  Ingersoll.     I  object  to  this  method  of  examination:  it  is  a  direct 
violation  of  the  rule  that  forbids  leading  questions. 

Judge  Rogers.     Mr.  Randall  only  stated  what  the  witness  had  said. 
Mr.  Randall.     You  stated  that  "Dr.  Beman  put  a  question,  after  Dr. 
Fisher  had  been  appointed  Moderator.     Now  recollect — was  it  Dr.  Be- 
man or  Dr.  Fisher  that  put  that  question? 

This   method  of  examination  was  objected  to,  but  the  objection  was 
overruled. 

Mr.  Dingee.  I  recollect  distinctly  that  it  was  Dr.  Fisher. 
Cross-examined  hy  Mr.  Hubbell.  On  my  way  down,  I  heard  the 
name  of  Dr.  Fisher.  I  was  on  the  stair-case,  behind  the  ladies,  when  I 
heard  it.  I  heard  simply  the  name:  in  what  connexion,  or  from  where  it 
came,  I  cannot  say.  The  stair-case  comes  down  into  the  lobby.  The  ter- 
mination of  the  stairs  in  the  gallery  is  the  only  part  of  them  that  is  in  the 
house.  I  know  Dr.  Fisher.  There  he  is,  (pointing  him  out  in  the  court- 
room.) When  I  w^ent  into  the  lower  part  of  the  church.  Dr.  Fisher  was 
standing  near  where  Dr.  Beman  had  been  standing,  when  I  had  left  the 
gallery,  and  Dr.  Beman  was  near  him.  I  do  not  recollect  distinctly  about 
their  position,  but 'I  think  it  was  just  as  I  have  stated.  The  first  I  knew 
of  Dr.  Fisher's  being  Moderator  was  his  putting  that  vote.  I  then  sup- 
posed he  was  Moderator,  from  the  fact  of  his  putting  it.  I  did  not  inquire, 
but  was  afterwards  satisfied  that  it  was  so,  when  I  went  to  the  church, 
and  found  him  in  the  Moderator's  seat— -I  mean  the  First  Church.     1  did 


Ijg  TRESBYTERIAN  CHURCH  CASE. 

not  state  in  my  first  examination  that  Dr.  Fisher  was  appointed  Modera- 
tor. It  is  so  long  since  these  occurrences  happened,  that  I  have  forgotten 
a  good  deal,  not  expecting  to'  be  called  upon  to  testify  in  the  case. 

Dr.  Fisher — re-called.  From  the  acquaintance  which  I  have  had  with 
the  order  of  the  Presbyterian  Church,  for  the  last  thirty  years,  in  all  our 
judicatories,  I  should  say  that  when  a  motion  is  made,  the  Moderator  is 
judge  in  the  first  instance.  If  he  decides  that  it  is  out  of  order,  and  the 
person  making  the  motion  acquiesces,  there  is  an  end  of  it.  But  a  party 
who  feels  himself  aggrieved,  has  a  right  to  appeal  from  the  Moderator's 
decision  to  the  house.  It  is  then  the  imperious  duty  of  the  Moderator  to 
put  the  appeal:  he  can  never  finally  decide  upon  his  own  decision.  If  he 
persists  in  refusing  to  put  an  appeal,  he  virtually  abandons  his  office. 

Mr.  Preston.     This  is  clearly  mere  matter  of  argument. 

Judge  Eogci's.     The  witness  must  confine  himself  to  facts. 

Examination  continued.  I  have  known  of  thousands  of  appeals,  but 
never  of  an  appeal  upon  an  appeal.  Such  a  thing  would  be  a  perfect  ab- 
surdity. 

Mr.  Sergeant.     This  is  merely  the  witness's  opinion. 

Cross-examination  continued.  I  know  of  no  case,  where  two  ques- 
tions of  equal  grade  can  come  before  a  legislative  body  at  the  same  mo- 
ment. 

Mr.  Sergeant.  Are  you  aware  that  some  of  the  counsel  have  intima- 
ted a  different  opinion ?- 

Dr.  Fisher.     I  did  not  know  that  they  had. 

Mr.   S..     Were  you  present  at  the  examination  of  Mr.  Adair? 

Dr.  F.  I  was  present,  and  some  of  the  questions  I  heard,  but  some  I 
didn't  hear. 

The  next  evidence  offered  was, 

Append,  to  Const. —  Gen.  Rules.  R.9.  "The  Moderator  may  speak  to  points  of  or- 
der, in  preference  to  other  members,  rising  from  his  seat  for  that  purpose ;  and  shall  de- 
cide questions  of  order,  subject  to  an  appeal  to  the  judicatory  by  any  two  members." 

Jejf.  Manual,  Sect.  IX — Title  ^■Speaker.''''  "A  speaker  may  be  removed  at  the 
will  of  the  house,  and  a  speaker  pro  tempore  appointed.     2  Grey  186.  5  Grey,  134." 

Id.  Sect.  XVII — Title  "  Order  in  Debate.''''  "In  parliament,  all  decisions  of  the 
speaker  may  be  controlled  by  the  house.     3  Grey,  319." 

Mr.  Eliakim  Phelps — re-called.  I  am  a  minister  of  the  Presbyteri- 
an Church,  and  have  been  so  for  about  ten  years,  i  have  taken  an  active 
interest  in  the  concerns  of  that  Church.  I  was  a  member  of  the  Assem- 
blies of '31, '34,  and  '35,  and  was  present  at  that  of '36,  a  part  of  that  of '37, 
and  most  of  the  Assembly  of '38.  I  have  taken  some  pains  to  collect  informa- 
tion, on  the  subject  of  the  materials  of  the  Assembly  of  1838,  I  am  gen- 
erally acquainted  with  the  localities  of  the  various  churches  that  compose 
the  General  Assembly. 

Mr.  Randall.  Have  the  Old-school  portions  of  the  Church  any  geo- 
graphical advantages? 

This  question  was  objected  to,  but  the  objection  was  waved. 

Mr.  Phelps.  I  can  state  in  general  terms,  that  fhe  Presbyteries  of 
Pennsylvania  are  what  are  generally  denominated  Old-school,  and  those 
Presbyteries,  which  have  generally  sent  representatives  of  the  New-school 
to  the  Assembly,  are  situated  in  the  northern  and  western  parts   of  the 


TESTIMONY  FOR  THE  RELATORS.  HQ 

Church,  and  some  of  them  in  the  south-western  and  southern  portions. 
The  Old-school  have  the  advantage  of  contiguity  over  the  New. 

Judge  Rogers.     What  do  you  mean  by  that? 

Mr.  Phelps.  I  mean  that  they  live  nearer  to  Philadelphia — the  place 
where  the  Assembly  usually  ineets.  I  have  been  at  some  pains  to  ascer- 
tain the  position  of  the  churches  in  the  city  and  liberties  of  Philadelphia, 
in  regard  to  these  two  parties.  The  churches  of  the  Third  Presbytery 
are  sixteen  in  number,  and  those  of  both  the  other  Presbyteries  do  not 
together  exceed  ten  or  twelve.  I  ought  to  explain  that  the  Third  Presby- 
tery is  New-School.  There  was  a  church,  in  the  southern  part  of  the 
city,  belonging  to  one  of  the  two  latter  Presbyteries  ;  but  it  is  said  that 
the  house  has  been  sold  to  the  Catholics.  I  don't  know  how  this  is.  If 
the  commissioners  to  the  Assembly  of  1838,  from  the  four  exscinded 
Synods,  and  from  the  Third  Presbytery  of  Philadelphia  had  voted,  I 
think  there  would  have  been  a  majority  with  those  who  opposed  the 
excluding  acts.  I  have  estimated  that  there  would  have  been  about  one 
hundred  and  forty  in  favour  of  Dr.  Patton's  and  Dr.  Mason's  resolutions, 
and  only  a  hundred  and  thirty-six  against  them,  had  they  been  put.  Of 
course  the  counsel  and  court  understand,  that  I  do  not  pretend  to  know 
the  hearts  of  men  ;  but  I  judge  from  the  known  views  of  a  portion  of  the 
Presbyteries,  and  from  the  best  information  I  could  collect  in  regard  to 
some  others.  I  cannot  say,  without  reference  to  data,  how  many  Pres- 
byteries were  not  represented  in  the  Assembly  of  1S38.  I  can  tell  some- 
thing near  the  number  of  commissioners  absent,  who  were  generally 
reckoned  on  one  ?ide  or  the  other. 

The  testimony  in  regard  to  this  point  was  objected  to. 

Mr.  Randall.  If  every  Presbytery  in  the  United  States  had  been 
fully  represented  in  the  Assembly  of  1838,  or  were  fully  represented  this 
day,  which  would  have  a  majority,  the  New  or  the  Old-school? 

Mr.  Preston.     Can  the  witness  state  this  from  his  own  knowledge? 

Mr.  Randall.  I  ask  only  for  his  judgment  or  opinion,  not  supposing 
him  acquainted  with  the  sentiments  of  every  minister  in  the  United 
States.     I  will  confine  the  question  to  the  Assembly  of  1838. 

Mr.  Preston.  May  it  please  your  Honour,  there  are,  in  our  judgment, 
two  objections  to  this  question:  first,  that  it  is  irrelevant,  and  secondly, 
that  the  mere  opinion  or  conjecture  of  the  witness  is  asked  for.  We  will 
however  permit  it  to  be  put,  if  the  same  permission  is  hereafter  to  be  ac- 
corded on  the  other  side.  We  object  unless  this  be  the  understanding. 
If  allowed  to  go  fully  into  the  matter,  we  shall  be  glad  of  the  issue  thus 
offered. 

Mr  Randall.  I  ofier  the  testimony  because  we  have  been  taunted 
with  being  a  minority.  We  must  however  submit  to  your  Honour's 
decision. 

Judge  Rogers.  We  must  confine  our  inquiry  to  the  majority  or 
minority  of  those  who  actually  assembled  in  1838.  Some  other  tribunal 
must  decide  the  question  submitted. 

Mr.  Phelps — cross-examined  by  Mr.  Preston.  I  did  not  state  that 
commissioners  from  the  Old-school  Presbyteries  had  superior  facilities  for 
getting  to  Philadelphia,  but  that  they  had  the  advantage  in  point  of 
contiguity.  I  did  not  say  they  had  advantages,  as  to  the  means  of  getting 
here.     I  cannot  say  thej^-have  superior  facilities  in  this  respect.     I  have 


120 


PRESBYTERIAN  CHURCH  CASE. 


no  knowledge  of  the  fact.  I  do  not  know  enough  about  that  matter  to 
form  a  judgment,  to  be  given  under  oath.  I  am  a  travelling  agent  of  the 
Board  of  the  Philadelphia  Education  Society,  which  is  a  branch  of  the 
American  Education  Society.  This  has  branches  all  over  the  United 
States.  Tlie  senior  Board  is  in  Boston;  there  is  another  in  New  York, 
and  one  in  Cincinnati.  I  am  commissioned  by  the  Philadelphia  Board. 
This  is  an  auxiliary  to  the  Central  American  Education  Society,  which 
embraces  all  of  the  United  States  out  of  New  England,  except  a  portion 
of  Micliigan,  and  perhaps  a  part  of  Ohio.  I  cannot  say  that  the  Board  at 
Boston  is  the  chief.  The  Central  American  Board  makes  annual  reports 
and  quarterly  returns  to  it,  but  is  independent  as  to  the  appropriation  of 
funds.  I  was  not  originally  ordained  in  the  Presbyterian  Church.  I 
was  ordained  in  1816,  and  have  been  in  the  Presbyterian  Church  about 
ten  years.  I  formerly  had  a  pastoral  charge  in  Geneva,  in  the  western 
part  of  the  State  of  New  York,  which  is  within  the  bounds  of  the  exscind- 
ed Synods.  I  have  been  within  the  bounds  of  those  Synods  since  they 
were  exscinded.  In  prosecuting  the  duties  of  the  Board  of  Education,  I 
am  led  as  far  as  Pittsburg  and  Erie;  and  once  a  year  have  been  as  far  south 
as  Richmond. 

Mr.  Preston.  T  want  you  to  tell  me  what  are  the  facilities  of  the 
churches  of  New  York  State,  compared  with  the  facilities  of  those  in  the 
Synod  of  Pittsburgh,  as  to  intercourse  with  Philadelphia,  expressed  in 
time. 

Mr.  Phelps.  The  mails  come  in  about  four  days,  or  a  shorter  time, 
from  Geneva  to  Philadelphia.  Railroads  have  been  constructed  in  that 
country  since  I  left  there.  In  answering  the  question,  in  regard  to  the 
advantages  of  contiguity  or  distance,  I  meant  to  include  the  whole  Presby- 
terian Church. 

Mr.  Preston.  How  are  the  Presbyteries  of  Virginia  divided,  between 
the  Old  and  New  Schools? 

Mr.  Phelps.  There  are  some  Presbyteries  of  both  kinds  in  that  State. 
I  know,  at  least,  one  New-school  Presbytery  among  them — that  of  the 
District  of  Columbia,  which  I  understand  is  partly  in  that  State.  I  have 
understood,  that  in  the  whole  Synod  of  Virginia,  the  Old-school  have  a 
small  majority. 

Judge  Rogers.  I  think  these  matters  are  irrelevant;  it  is  necessary, 
for  the  sake  of  both  the  court  and  jury,  that  I  should  interpose. 

Mr.  Preston.  The  witness  has  sworn  that  the  Old-school  have  the 
advantage  in  point  of  contiguity.  Now,  in  explanation  of  this,  I  propose 
to  examine  the  witness,  as  to  the  Presbyteries  in  the  whole  tract  of  the 
southern  and  south-western  States. 

Mr.  Randall.  We  mean  to  follow  up  the  testimony  offered,  by  evi- 
dence, to  prove  that  the  Old-school  majority  in  1837  was  merely  acciden- 
tal, and  did  not  show  the  numerical  strength  of  the  parties. 

Judge  Rogers.     That  is  the  very  thing  I  wish  to  reject. 

Mr.  Randall.  I  propose,  also,  to  offer  evidence  as  to  the  comparative 
means  of  intercourse. 

Judge  Rogers.  It  is  no  matter  whether  one  part  of  the  Church  is  more 
or  less  contiguous  than  another. 

Mr.  Randall  next  read,  Form  of  Gov. ,  Chai).  X.  Sec.  7.  ( Vid.  .^nte. 
p.  23.) 


TESTIMONY  FOR  THE  RELATORS.  121 

Min.  of  1S37,  p.  523,  ''Statistical  Table:'  The  Presbytery  of 
Newburyport,  reported  as  containing  sixteen  ministers,  and  but  two  Pres- 
byterian churches. 

Mr.  Randall.  If  this  evidence  does  not  fall  within  your  Honor's  de- 
cision, and,  if  it  does,  the  opposite  counsel  will  object,  I  propose  also  to 
read  the  report  of  the  Charleston  Union  Presbytery. 

Id.,ji.  61S— 19.  Charleston  Union  Presbytery,  reported  as  containing 
twenty-eight  ministers,  and  only  eight  Presbytq-ian  churches. 

Min.  of  1835, p.  13.  "The  unfinished  business  of  the  morning  was  resumed,  viz: 
thq  consideration  of  the  Overture  No.  16;  which  was  committed  to  Dr.  Miller,  Dr. 
Hon-e,  Dr.  Edgar^  Mr.  D.  Elliott,  Mr.  McElhenny,  Mr.  Stonestreet,  and  Mr.  Banks. 

Min.  1835,  p.  26—"  The  consideration  of  the  report  on  overture  No.  16,  was  resumed. 
The  6th  general  resolution  being  under  discussion,  the  consideration  of  it  was  postponed 
to  take  up  a  substitute,  which  being  read  and  discussed,  was  adopted.  The  seventh 
and  eighth  general  resolutions  of  the  report  were  then  adopted.  The  preamble  was 
adopted.  The  question  was  then  taken  on  the  whole  report  as  amended,  which  was 
adopted,  and  is  as  follows: 

"The  committee  to  whom  was  referred  the  Memorial  and  Petition  of  a  number  of 
Ministers  and  Ruling  Elders  of  the  Presbyterian  Church,  and  certain  other  papers  rela- 
ting to  the  same  or  allied  subjects,  beg  leave  to  report,  \ 

"That  they  have  endeavoured  to  deliberate  on  the  said  Memorial  and  Petition,  and 
.other  papers  committed  to  them,  with  all  that  respect  which  the  character  of  those  from 
whom  they  come,  could  not  fail  to  inspire  ;  and  with  all  the  calmness,  impartiality  and 
solemnity  which  the  deep  importance  of  the  subject  on  which  they  have  addressed  the 
Assembly,  so  manifestly  demands. 

"The  committee,  therefore,  as  the  result  of  their  deliberations  on  the  documents 
committed  to  them,  would  most  respectively  recommend  to  the  Assembly  the  adoption 

of  the  following  resolutions,  viz. 

*        **         *         *         *■*        *         *         *         *        *         *        * 

"  Resolution  VI.— Resolved,  that  this  Assembly  deem  it  no  longer  desirable  that 
churches  should  be  formed  in  our  Presbyterian  connection  agreeably  to  the  plan  adopt- 
ed by  the  Assembly  and  the  General  Association  of  Connecticut  in  1801.  Therefore, 
Resolved,  that  our  brethren  of  the  General  Association  of  Connecticut  be,  and  they 
hereby  are,  respectfully  requested  to  consent  that  said  plan  be,  from  and  after  the  next 
meeting  of  that  Association,  declared  to  be  annulled.  And,  Resolved,  that  the  annulling 
of  said  plan  shall  not  in  any  wise  interfere  with  the  existence  and  lawful  operations  of 
churchrs  which  have  been  already  formed  on  this  plan. 

"  VII.  Resolved,  that  this  General  Assembly  see  no  cause  either  to  terminate  or  modi- 
fy the  plan  of  correspondence  with  the  Association  of  our  Congregational  brethren  in 
New  England.  That  correspondence  has  been  long  established.  It  is  believed  to  have 
been  productive  of  mutual  benefit.  It  is  now  divested  of  the  voting  power,  which 
alone  could  be  considered  as  infringing  on  the  constitution  of  our  Church  by  introducing 
persons  clothed  with  the  character  of  plenary  members  of  the  Assembly.  It  stands,  at 
present,  substantially  on  the  same  footing  with  the  visits  of  our  brethren  from  the  Con- 
gregational Union  of  England  and  Wales;  and  in  the  present  age  of  enlarged  counsel, 
and^of  combined  effort,  for  the  conversion  of  the  world,  ought  by  no  means  to  be  abol- 
ished. Besides,  the  Assembly  are  persuaded,  that  amidst  the  unceasing  and  growing 
intercourse,  between  the  Presbyterian  and  Congrpgational  Churches,  it  is  desirable  to 
have  that  intercourse  regulated  by  compact,  and  of  course,  that  it  would  be  desirable  to 
introduce  terms  of  correspondence  even  if  they  did  not  already  exist." 

************** 

Bev.  Oliver  fFetmore — sworn.  I  am  a  minister  of  the  Presbyterian 
Churcli,  in  which  I  have  been  for  thirty  years,  or  thereabouts.  I  belong 
to  the  Presbytery  of  Oneida,  and  have  with  me  some  of  the  records  of 
that  Presbytery. 

Mr.  Randall.  By  what  Presbytery  was  the  Rev.  Dr.  Carnahan, 
President  of  Princeton  College,  ordained  ? 

16 


122 


PRESBYTERIAN  CHURCH  CASE. 


Mr.  Hubbell.  We  object  to  the  question.  Dr.  Carnahan  was  not  even 
a  member  of  the  General  Assembly  of  1838. 

Mr.  Randall.  We  propose  to  give  Dr.  Carnahan  as  an  example  of  an 
individual  ordained  in  one  of  the  exscinded  Synods,  but  who  came  out  of 
it  before  the  excision,  and  is  now  in  good  standing,  while  others,  by 
moving  within  the  bounds  of  those  Synods,  have  been  excluded.  Dr. 
Carnahan  we  offer  as  an  example  of  the  former  kind,  and  shall  afterwards 
present  the  case  of  Dr.  Richards,  who  was  ordained  by  a  Presbytery  in 
New  Jersey,  but  has  since  moved  to  Auburn,  and  is  among  those  exscinded 
in  1837.  We  want  to  show  the  unjust  practtcal  operation  of  the  exscind- 
ing acts. 

Mr.  Hubbell.  We  have  heard  enough  of  unjust  excisions,  of  acts  of 
which  we  are  ashamed.  We  have  done  nothing  of  which  we  are 
ashamed — nothing  unjust.  The  acts  so  frequently  characterized  as  acts 
of  excision,  are  not  so  by  any  means.  They  provide  expressly  for  the 
continuance  in  the  church  of  all  Presbyterian  ministers,  and  congregations, 
that  will  simply  report  their  names  to  regular  Presbyteries.  If  Dr. 
Richards  has  been  excluded,  he  has  only  to  report  his  name  to  the  nearest 
or  most  convenient  Presbytery,  and  he  will  be  received.  No  injustice 
has  been  done  this  gentleman.  Dr.  Carnahan  is  President  of  Princeton 
College;  and  what  have  we  to  do  with  him?  Will  this  testimony  help  us 
to  decide  which  is  the  true  General  Assembly?  Suppose  that  one  of  these 
gentlemen  does  suffer  some  inconvenience,  does  this  establish  the  legiti- 
macy of  either  body?  Does  it  tend  in  the  remotest,  the  most  reflective 
manner  to  do  so?  Look  at  the  qualifications  of  these  acts,  which  are 
called  acts  of  excision,  though  merely  administrative  acts.  Our  opponents 
say  they  are  unconstitutional,  and  destructive  of  their  rights;  but  the  sole 
difficulty  lies  in  their  obstinacy,  and  their  desire  to  give  laws  to  us. 

"  Inasmuch  as  there  are  reported  to  be  several  churches  and  ministers, 
if  not  one  or  two  Presbyteries,  now  in  connexion  with  one  or  more  of 
said  Synods,  which  are  strictly  Presbyterian  in  doctrine  and  order,  be  it, 
therefore,  further  resolved,  that  all  such  churches  and  ministers  as  wish  to 
unite  with  us,  are  hereby  directed  to  apply  for  admission  into  those  Pres- 
byteries belonging  to  our  connection  which  are  most  convenient  to  their 
respective  locations  ;  and  that  any  such  Presbytery  as  aforesaid,  being 
strictly  Presbyterian  in  doctrine  and  order,  and  now  in  connection  with 
either  of  said  Synods,  as  may  desire  to  unite  with  us,  are  hereby  directed 
to  make  application,  with  a  full  statement  of  their  cases,  to  the  next 
General  Assembly,  which  will  take  proper  order  thereon." 

Is  there  any  excision  in  that  ?  Here  were  certain  bodies,  which,  in 
their  infancy,  were  admitted  into  our  communion,  that  we  might  foster 
and  protect  them.  Time  rolls  on;  they  have  out-grown  the  necessity 
of  protection,  and  are  called  upon  either  to  go  out  from  us,  or  adapt 
themselves  to  our  system.  They  will  do  neither.  They  even  wish  to 
govern  us.  They  inflict  discipline  upon  us,  and  when  we  attempt  to  inflict 
it  on  them  in  return,  they  put  up  the  shield  of  Congregationalism,  and  laugh 
us  to  scorn.  It  is  therefore  absolutely  necessary  that  they  should  submit 
to  our  forms  of  government,  and  throw  off  their  Congregationalism,  or 
retire  from  among  us.  It  became  our  imperative  duty  to  perform  the  acts 
complained  of,  to  prevent  a  dismemberment  of  the  Church. 

Our  opponents  have  chosen  a  certain  issue,  and  by  it  they  must  abide. 
Is  that  issue,  whether  Dr.  Carnahan  or  Dr.  Richards  has  suffered  an  incon- 


TESTIMONY  FOR  THE  RELATORS.  123 

venience?  Indeed,  if  they  complain  of  inconvenience,  it  is  only  because 
they  don't  read  the  resolution  which  I  have  'just  quoted.  I  know  Dr. 
Carnahan  by  reputation.  He  has  removed  to  Princeton,  and  may  have 
been  represented  in  the  Assembly  ;  but  the  fact  that  he  has  been  affected 
by  the  disowning  acts,  if  indeed  they  have  affected  him  at  all,  is  collateral 
to  this  issue,  and  very  remote  from  it.  I  hope  your  Honour  will  exclude 
all  these  collateral  facts.  When  we  have  attempted  to  rebut  those  that 
have  been  admitted,  the  offer  has  been  rejected  by  the  court.  In  conse- 
quence of  this,  we  must  meet  them  at  the  first  onset,  by  objecting  to  their 
introduction.  We  are  not  ashamed  of  any  of  our  proceedings:  to  say 
that  we  are  is  a  gratuitous  assumption.  After  this  long  endurance  we 
shall  at  last  have  an  opportunity  to  make  our  defence,  and  show  the 
ju-stice  of  the  disowning  acts.  Let  us  now  come  to  the  pith  of  the  mat- 
ter. What  have  we  to  do  with  the  inconvenience  suffered  by  Dr.  Carna- 
han, or  Dr.  Richards  ?  In  fact  if  they  have  suffered  inconvenience,  it 
must  have  been  from  their  own  free  choice. 

Mr.  Randall.  This  is  a  very  interesting  question,  perhaps  the  most 
interesting  that  has  been  presented.  Our  proceedings  in  1838  were  pre- 
dicated on  the  unlawful  excision — the  detrusion,  of  four  Synods  from  the 
Church.  We  say  that  this  detrusion  was  contrary,  not  merely  to  the 
Constitution  of  the  Church,  but  also  to  the  laws  of  the  land,  and  to  com- 
mon sense.  We  now  wish  to  follow  out  the  acts  of  1837  in  their  practical 
effects — not  on  any  particular  individual,  locality  or  domicil;  but  their 
effects  in  general.  We  do  not  attach  any  importance  to  the  fact  that 
inconvenience  is  suffered  in  an  individual  instance  ;  but  we  want  to  show 
the  universal  operation  of  the  acts  referred  to — that  by  the  accidental 
circumstance  of  a  person's  residence  he  is  either  excluded,  or  left  un- 
touched. If  the  testimony  now  offered  be  allowed,  we  shall  then  go 
farther,  and  show  that  a  clergyman  ordained  in  New  Jersey,  by  merely 
residing  within  the  infected  region  is  disfranchised  and  disrobed.  Can 
any  thing  be  more  plainly  relevant  ?  We  shall  give  the  instance  of  a 
professor,  who  at  the  time  of  the  excision  was  not  touched,  but  by  his 
entry  into  one  of  the  four  Synods  has  been  excluded.  All  this  goes  'to 
shovv  the  practical  effects  of  the  exscinding  acts.  It  has  been  said  that 
there  was  no  injustice  in  those  acts — that  they  excluded  no  one  ;  but  you 
have  just  heard  a  resolution  read,  declaring,  that  the  individuals  on  whom 
they  were  intended  to  operate,  in  order  to  be  received  back  into  the 
Church,  must  come  and  apply,  as  persons  not  belonging  to  it,  show  that 
they  are  Presbyterians,  and  undfergo  an  examination.  They  are  to  be 
received,  only,  as  members  from  an  entirely  foreign  association  may  be. — 
Unless  they  come  in  this  manner,  they  are  told,  "  We  do  not  know  you. 
We  are  the  arbitrary  judges  as  to  whom  we  will  recognise.  Yet  no  injus- 
tice is  done  you,  for  we  have  provided  a  method  by  which  you  may  be 
restored  to  your  old  footing.  We  have  done  you  no  injustice  for  you  may- 
be pardoned."  I  say  that  these  men  are  placed  in  the  same  situation  as  if 
they  had  never  belonged  to  the  Church.  When  a  Presbytery  is  excluded, 
all  the  ministers  and  individuals  within  its  jurisdiction  are  cut  off.  And 
while  these  individuals  and  judicatories  are,  as  it  is  said,  invited  to  apply 
for  re-admission,  no  pledge  or  promise  is  given,  that  they  will  be  re- 
admitted upon  such  application.  The  question  is  left  open— as  completely 
open  as  if  they  came  fram  any  other  bodies. 


124 


PRESBYTERIAN   CHURCH  CASE. 


One  word  as  to  the  Plan  of  1801.  I  say  that  that  Plan  never  admit- 
ted Congregationalists  into  the  Presbyterian  Church;  that  it  did  not  con- 
template their  admission;  that  none  could  be  admitted  under  it  Those 
venerable  men  who  formed  it,  were  not  guilty  of  the  heresy  of  admitting 
Congregational  ministers  into  their  communion.  It  has  been  said,  that 
those  excluded  by  the  acts  of  1837,  wish  to  rule  their  brethren,  and  will 
not  submit  themselves  to  the  discipline  of  the  Church.  These  are  en- 
tirely gratuitous  assertions;  if  they  can  be  supported  by  evidence,  the 
time  for  such  evidence  to  be  offered  will  come  by-and-by.  Where  is 
there,  as  yet,  any  proof,  that  these  gentlemen  who  have  been  detruded — 
a  very  graphic  word — have  ever  refused  to  submit  to  Presbyterian  gov- 
ernment and  discipline?  No  such  thing  has  been,  or  ever  can  be  proved. 
We  want  to  show,  that  this  was  an  indiscriminate  and  ruthlesss  exercise 
of  power — the  driving  out  and  dissolving  large  bodies  of  nien,  without 
any  regard  to  their  particular  tenets.  That  the  extent  of  the  exclusion 
depended  merely  on  geographical  limits.  The  cases  of  the  two  individuals 
whom  I  have  mentioned,  are  not  singular.  Their  cases  are  the  cases  of 
all  similarly  situated.  I  have  chosen  to  instance  these  two  men,  Dr. 
Carnahan  and  Dr.  Richards — both  heads  of  colleges,  in  order  to  place  in 
bold  relief  the  unjust  and  unwarrantable  nature  of  the  acts  of  excision. 
To  show  that  the  exclusion  did  not  depend  upon  the  individual,  but  upon 
the  location  of  the  Presbytery  to  which  he  belonged. 

We  desire  that  all  the  features  of  this  case  should  be  developed  before 
the  court,  in  order  that  its  intrinsic  character  may  be  understood.  The 
whole  crime  of  the  five  hundred  and  nine  ministers  who  have  been  cut 
off  is,  that  they  happened  to  be  Presbyterian  ministers  in  good  repute, 
belonging  to  Synods,  within  the  bounds  of  which  were  a  few  Congrega- 
tional churches.  This  was  the  very  head  and  front  of  their  offending. 
They  happened  to  live  within  an  infected  district — we  shall  hereafter  ex- 
hibit a  map  of  it — a  district  in  which  there  was  a  Congregational  church. 
This  we  are  at  liberty  to  prove. 

Mr.  Hubbell  says  that  these  gentlemen  were  not  detruded;  that  no  in- 
justice has  been  done  them.  They  have  been  told,  "You  may  do  just 
what  any  other  strangers  might — apply  for  admission;  and  then  we  will 
take  such  order  in  regard  to  your  cases,  as  in  the  exercise  of  a  sound 
judgment  we  may  think  proper."  And  a  strict  or  lenient  hand  would  be 
extended  to  them,  according  to  the  complexion  of  the  body  to  which  they 
might  apply. 

Mr.  Ingersoll.  It  seems  to  me  that  your  Honour's  decision  of  yester- 
day, covers  all  this  ground  and  a  great  deal  more.  The  court  then  decided 
that  the  testimony  offered  in  regard  to  the  Synods  of  New  Jcrsc}'^,  and 
Albany  was  foreign  to  the  case.  The  fact  that  a  Presbyterian  minister  in 
New  Jersey,  or  any  Presbyterian  minister  at  all — and  certainly  there  are 
none  more  respectable  than  the  one  who  has  been  mentioned — has  not 
been  excluded,  while  some  others  have,  is  equally  foreign  and  irrelevant. 
What  is  the  question  now  proposed?  Your  Honour  has  admitted  testi- 
mony of  certain  resolutions  being  passed  in  1837,  I)y  the  effect  of  which  it 
is  contended  that  certain^commissioners  were  excluded  from  the  Assembly 
of  1838.  We  say  that  nobody  was  excluded — nobody  entitled  to  a  seat 
in  any  view  of  the  case.  This  is  a  question  for  the  decision  of  the  jury. 
An  inquiry  was  proposed  yesterday,  designed  to  indicate,  that,  by  the  pas- 


TESTIMONY  FOR  THE  RELATORS.  1 25 

sage  of  certain  resolutions,  either  a  door  was  opened,  through  which  we 
went  too  far;  or  a  door  being  opened,  we  did  not  go  far  enough.  This 
testimony  was  rejected,  and|on  the  ground,  that  the  legality  of  what  the  As- 
sembly had  done  in  certain  cases,  was  not  to  be  determined  by  proof  of 
what  it  had  failed  to  do,  or  had  not  done,  in  certain  other  cases.  The  evi- 
dence now  offered  seems  to  me  farther  still  from  the  merits  of  the  case.  If 
the  partial  operation  of  the  acts  of  the  Assembly,  in  the  case  of  whole 
Synods,  be  irrelevant,  what  has  the  hardship  or  rigour  of  their  operation 
on  single  individuals  to  do  with  the  subject?  Is  the  constitutionality  of 
.these  acts  to  be  determined  by  reference  to  their  efiect  in  some  particular 
instances?  It  seems  to  me  that  such  an  inquiry  is  totally  foreign  to  the 
subject.  The  question  before  the  court  respects  the  validity  of  the  elec- 
tion of  certain  trustees.  This  is  not  an  inquiry  as  to  the  vast  mass  of 
Presbyterians,  throughout  the  whole  country:  we  are  now  confined  to  the 
Assembly  of  1S3S,  and  those  who  claim  to  have  had  a  right  to  sit  in  it, 
and  to  elect  trustees.  These  investigations  go  to  show  a  hypothetical  or 
actual  state  of  things,  not  bearing  at  all  upon  the  issue. 

Judge  Rogers.  This  is  nothing  more  than  showing  the  construction 
to  be  put  upon  those  acts;  but  that  may  be  shown  in  the  argument,  more 
properly   than  by  evidence  as  to  particular  cases. 

The  counsel  for  the  respondents  proposed  to  cross-examine  Mr.  Wet- 
more. 

Mr.  Randall.  You  cannot  cross-examine  upon  any  points  on  which 
he  has  not  been  examined  in  chief. 

Judge  Rogers.  You  can,  however,  make  him  your  own  witness.  But 
if  it  is  proposed  to  go  into  new  matter,  you  had  better  wait  till  by~and-by. 

Mr.  Randall.  I  offer  the  Minutes  of  1837,  page  442,  from  which  it 
appears,  that  on  Friday  afternoon,  June  2d,  the  Rev.  Norris  Bull  was 
elected  a  member  of  the  Board  of  Education,  to  serve  for  four  years.  On 
the  Monday  following,  the  act  exscinding  the  Synods  of  Utica,  Geneva, 
and  Genesee  was  passed,  {Id.  p.  444,)  by  the  operation  of  which  Mr. 
Bull  was  excluded  from  the  Church,  as  he  belonged  to  the  Presbyter)'- 
of  Rochester,  in  the  Synod  of  Genesee,  which  appears  from  the  same 
Minutes,  page  541. 

Mr.  Ambrose  White — sworn.  I  was  a  member  of  the  Board  of 
Trustees  of  the  Presbyterian  Church,  in  the  year  1S38.  In  the  month  of 
June,  1838,  shortly  after  the  meeting  of  the  Assembly,  the  relators  in  this 
case  applied  for  admission  to  seats  in  the  Board.  All  the  relators  applied, 
but  John  R.  Neff  did  not  while  I  was  present.  The  members  present  re- 
fused to  recognise  them  as  trustees,  and  a  resolution  was  passed  to  that 
effect,  from  which  I  dissented. 

Cross-examined  by  Mr.  Hubbell.  I  am  placed  in  the  New-school 
party:  I  believe  there  is  no  doubt  about  my  belonging  to  it.  I  have  been 
active  in  the  management  of  this  case,  and  of  the  measures  preliminary  to  it. 

The  next  evidence  offered. 

Form  of  Government  Chapter  III. — "  Of  the  Officers  of  the  Church.'^ 
"  Sect.  2.  The  ordinary  and  perpetual  officers,  in  the  Church  are,  Bishops  or  Pas- 
tors; the  representatives  of  the  people,  usually  styled  Ruling  Elders,  and  Deacons.'' 

Id.  Chapter  VIII. — "Of  Church  Government,  and  the  several  kinds  of  Judicatories." 
"  Sect.  1.  It  is  absolut^y  necessary  that  the  government  of  the  Church  be  exercised 


126 


PRESBYTERIAN  CHURCH  CASE. 


under  some  certain  and  definite  form.  And  we  hold  it  to  be  expedient,  and  agreeable 
to  Scripture,  and  the  practice  of  the  primitive  Christians,  that  the  Church  be  governed 
by  Conjrregational,  Presbyterial,  and  Synodical  Assemblies.  In  full  consistency  with 
this  beliet.'we  embrace  in  the  spirit  of  charity,  those  Christians  who  differ  from  us,  in 
opinion  or  practice,  on  these  subjects. 

"  2.  Tliese  Assemblies  ouu^lit  not  to  possess  any  civil  jurisdiction,  nor  to  inflict  any 
civil  penalties.  Their  power  is  wholly  moral  or  spiritual,  and  that  only  ministerial  and 
declarative.  They  possess  the  right  of  requiring  obedience  to  the  laws  of  Christ;  and 
of  excluding  the  di.^obedient  and  disorderly,  from  the  privileo^es  of  the  Church.  To 
give  efficiency,  however,  to  this  necessary  and  scriptural  authority,  they  possess  the 
powers  requisite  for  obtaining  evidence  and  inflicting  censure.  They  can  call  before 
them  any  offender  against  the  order  and  government  of  the  Church  ;  they  can  require 
members  of  their  own  society,  to  appear  and  give  testimony  in  the  cause;  but  the  high- 
est punishment  to  which  their  authority  extends,  is  to  exclude  the  contumacious  and 
impenitent  from  the  conwregation  of  believers." 

Assembh/s  Digest,  pp.  28,  29. — "  Sect.  11.  No  Corresponding  Members  can  be  ad- 
mitted into  the  Assembly. 

"Upon  motion  it  was  agreed,  that,  whereas  this  Assembly,  copying  the  example  of 
their  predecessors,  have  admitted  several  ministers,  who  are  not  commissioners,  to  join 
in  their  deliberations  and  conclusions,  but  not  to  vote  on  any  question.  And  although 
this  Assembly  has  been  much  indebted  to  the  wise  counsels  and  friendly  assistance  of 
these  corresponding  ministers,  nevertheless,  on  mature  deliberation,  it  was  Resolved  as 
the  opinion  of  this  house  ; 

"  1.  That  no  delegated  body  has  a  right  to  transfer  its  powers,  or  any  part  thereof, 
unless  express  provision  is  in  its  constitution. 

"  2.  That  this  Assembly  is  a  delegated  body,  and  no  such  provision  is  in  its  constitu- 
tion. 

"  3.  Although  such  admission  has  hitherto  produced  no  bad  consequences,  it  may,  ne- 
vertheless, at  some  future  day,  be  applied  to  party  purposes,  and  cause  embarrassment 
and  delay. — Wherefore,  Resolved, 

"  4.  And  lastly.  That  the  practice  of  this  Assembly,  in  this  case,  ought  not  to  be  used 
as  a  precedent  in  future. — 1791.     Vol.  I.  page  42. 

Assembly's  Digest,  p.  323. — "  Sect.  5.  No  person  to  be  condemned  without  due  no- 
tice of  the  accusation  against  him. 

"  It  was  Resolved,  as  the  sense  of  this  house,  that  no  man  or  body  of  men,  agreeably 
to  the  constitution  of  this  CImrch,  ought  to  be  condemned  or  censured,  without  having 
notice  of  the  accusation  against  him  or  them,  and  notice  given  for  trial. — Vol.  I.  p.  77. 
1793." 

It  was  agreed  by  the  counsel  that  the  whole  of  the  book,  entitled  "  The 
Constitution  of  the  Presbyterian  Church/'  &c.  was  to  be  considered  as  in 
evidence. 

Min.  1821,  p.  9.—"  The  committee  appointed  to  confer  with  a  committee  from  the 
Associate  Reformed  Synod,  presented  as  their  report,  the  following  minutes  of  proceed- 
ings, viz. 

"  The  committee  appointed  by  the  General  Assembly  of  the  Presbyterian  Church, 
and  the  committee  appointed  by  the  General  Synod  of  the  Associate  Reformed  Church, 
to  confer  with  respect  to  a  union  of  the  two  bodies,  met  at  the  house  of  Jonathan  Smith, 
E?q.  The  Rev.  Dr.  Green  was  chosen  chairman  of  the  meeting,  and  the  Rev.  John 
Lind,  secretary.     The  business  was  introduced  with  prayer  by  Dr.  Green. 

"On  motion  of  Dr.  Blatchford,  seconded  by  Dr.  Mason,  it  was  resolved,  unanimously, 
as  the  judgment  of  the  conferring  committees,  that  a  union  of  the  two  churches  is  both 
desirable  and  practicable. 

"The  following  articles  were  then  proposed,  and  unanimously  approved  as  the  basis 
of  sucii  a  union. 

"The  diflx>rent  Presbyteries  of  the  Associate  Reformed  Church,  shall  either  retain 
their  separate  organization,  or  shall  be  amalgamated  with  those  of  the  General  Assem- 
bly, at  their  own  choice.  In  the  former  case,  they  shall  have  as  full  powers  and  privi- 
leges as  any  other  Presbyteries  in  the  united  body,  and  shall  attach  themselves  to  the 
Synods  most  convenient. 

"  2.  The  Theological  Seminary  at  Princeton,  under  the  care  of  the  General  Assembly, 
and  the  Theological  Seminary  of  the  Associate  Reformed  Church  shall  be  conEolidated. 


TESTIMONY  FOR  THE  RELATORS.  127 

"  3.  Whereas  monies  to  the  amount  of  between  nine  and  ten  thousand  dollars,  which 
were  given  to  the  General  Synod  of  the  Associate  Reformed  Church,  and  of  which  the 
interest  or  product  only  was  to  be  applied  to  the  support  of  a  Theological  Seminary, 
were  necessarily  used  in  the  current  expenses  tiiereof:  which  monies  so  expended  were 
assumed  by  the  Synod  as  its  own  debt,  at  an  interest  of  seven  per  cent;  the  united  body 
agree  to  make  a  joint  effort  to  repay  the  same,  and  will  apply  the  interest  accruing 
thereon  to  the  maintenance  of  a  Professorship  of  Biblical  Literature,  in  the  Seminti- 
ry  at  Princeton,  analogous  to  that  which  now  exists  in  the  Associate  Reformed  Church, 
and  until  such  professorship  shall  be  established,  the  said  interest  or  product  shall  be 
used  for  the  general  purposes  of  the  Seminary. 

"  4.  The  Theological  Library  and  Funds  belonging  to  the  Associate  Reformed  Church, 
_ shall  be  transferred  and  belong  to  the  Seminary  at  Princeton. 

"These  articles  having  been  approved,  were  ordered  to  be  transcribed  and  signed, 
and  a  copy  of  them  transmitted  to  the  General  Assembly  of  the  Presbyterian  Church, 
and  the  General  Synod  of  the  Associate  Reformed  Church,  respectively. 

"  The  meeting  was  closed  with  prayer  by  the  Rev.  Ebenezer  Dickey. 

"  All  which  is  respectfully  submitted. 

"  Ashbel  Green,  Samuel  Blatchford,  John  McDowell,  Henry  Southard,  Benjamin 
Strong,  J.  M.  Mason,  Ebenezer  Dickey,  John  Lind,  William  Wilson,  Joseph  Gushing. 

"  The  foregoing  report  having  been  read,  and  duly  considered,  was  unanimously 
adopted. 

"  Ordered,  that  the  committee  of  conference  on  this  subject,  wait  on  the  Synod  of  the 
Associate  Reformed  Church,  and  inform  them  of  the  adoption  of  the  articles  of  union  on 
the  part  of  this  General  Assembly. 

Min.  1822,  p.  11. — "The  following  communication  from  the  General  Synod  of  the 
Associate  Reformed  Church,  was  received  and  read,  viz. 

"  Resolved,  That  this  Synod  approve  and  hereby  do  ratify  the  Plan  of  Union  between 
the  General  Assembly  of  the  Presbyterian  Church  and  the  Associate  Reformed  Church, 
proposed  by  commissioners  from  said  Churches. 

"Extract  from  the  minutes  of  the  General  Synod  of  the  Associate  Reformed  Church 
ofPhiladelphia,  21st  May,  1822. 

James  Laurie,  Moderator, 
J.  Arbuckle,  Clerk. 

"Resolved,  That  a  copy  of  the  above  resolution,  authenticated  by  the  Moderator  and 
clerk,  be  immediately  sent  to  the  General  Assembly  of  the  Presbyterian  Church,  and 
that  the  Rev.  Ebenezer  Dickey  and  Dr.  Robert  Patterson  be  a  committee  to  wait  upon 
the  Assembly  with  said  resolution. 

J.  ARBUCKLE,  Clerk. 

"The  );ommittee  from  the  Synod  of  the  Associate  Reformed  Church  appeared  in  the 
Assembly,  and  the  resolution  was  read, 

"  Whereupon,  Resolved,  That  the  Assembly  receive  this  communication  with  great 
pleasure;  and  the  Rev.  Jonas  Coe,  D.  D.,  the  Rev.  Thomas  M'Auley,  L.  L.  D.,  the 
Rev.  William  Gray,  of  the  Presbytery  of  New  York,  and  Mr.  Divie  Bethune  were  ap- 
pointed a  committee  to  wait  upon  said  Synod;  and,  inasmuch  as  the  different  Presby- 
teries under  the  care  of  the  Synod,  cannot  appoint  delegates  to  attend  the  present  Gene- 
ral Assembly,  cordially  to  invite  all  the  delegates  to  the  Synod,  to  take  their  seats  in 
this  house,  as  members  of  the  Assembly. 

"  Resolved,  moreover,  that  the  committee  aforesaid  be  directed  to  request  the  mem- 
bers of  said  Synod,  to  attend  this  Assembly  on  to-morrow,  at  4  o'clock,  P.  M.,  that  we 
may,  unitedly,  return  thanks  to  Almighty  God,  for  the  consummation  of  this  union." 

Dr.  Erskine  Mason — re-called.  I  have  never  known  a  single  in- 
stance of  the  re-ordination  of  ministers  received  from  other  denomina- 
tions into  the  Presbyterian  Church.  My  father  was  admitted  into  that 
Church  under  the  union  of  1821,  but  he  was  never  re-ordained.  There 
are  instances  in  the  Presbytery  of  New  York,  of  clergymen  who  have 
come  from  the  mother  country,  in  regard  to  whom  the  same  rule  was  ob- 
served. 

Cross-examined  by  Mr,  Hubbell.  The  Second  Presbytery  of  New* 
York  never  required'^he  Confession  of  Faith  to  be  subscribed.     They 


128  PRESBYTERIAN  CHURCH  CASE. 

themselves  don't  use  it.  The  book  of  the  Associate  Reformed  Church  is 
the  one  under  which  they  act.  The  form  of  government  of  that  Church 
differs  from  the  Presbyterian  form,  in  several  important  respects.  The 
Confession  of  Faith  of  both  Churches  is  the  same:  it  is  the  Westminster 
Confession.  I  was  formerly  a  member  of  the  Second  Presbytery  of  New 
York.  The  Associate  Reformed  Church  is  Presbyterian  in  its  form  of 
government:  it  has  elders  and  church  sessions.  Foreign  ministers  apply- 
ing for  admission  into  the  Third  Presbytery  of  New  York,  are  subjected 
to  examination  and  a  year's  probation.  I  am  speaking  now  of  those  who 
come  from  across  the  Atlantic.  That  is  the  Presbytery  to  which  I  now 
belong.  We  require,  in  the  Third  Presbytery,  an  acknowledgment  of 
the  Confession  of  Faith. 

Re-examined  by  Mr.  Randall.  The  Westminster  Confession  of 
Faith,  in  the  part  that  relates  to  civil  magistrates,  was  altered  by  both  the 
Associate  Reformed  and  the  Presbyterian  Churches. 

Mr.  Randall.  In  the  course  of  the  trial  of  the  case  of  Duncan  against 
the  Ninth  Presbyterian  Church,  one  of  the  gentlemen  who  are  the  respon- 
dents here.  Dr.  Green,  gave  evidence  in  regard  to  some  of  the  questions 
now  agitated.  When  Mr.  Ingersoll,  who  was  one  of  the  counsel  engaged 
in  that  case,  has  his  notes  here,  I  shall  take  an  opportunity  of  referring  to 
them.     With  this  exception,  we  here  close  our  case. 


129 


TUESDAY  AFTERNOON— 4  o'clock. 

MR.  hubbell's  opening. 
Mr.  Hubbell  opened  the  case  for  the  Respondents,  as  follows : 

May  it  please  the  Court— Gentlemen  of  the  Jury—-Yo\i  have  been 
engaged  nearly  a  week,  in  listening  to  a  series  of  attacks,  (so  to  speak,) 
made  by  the  witnesses,  and  the  counsel  of  the  Relators,  upon  the  party 
which  I  and  my  colleagues  have  the  honour  to  represent;  and  we  have 
been  compelled,  by  the  decorum  of  the  court,  to  sit  and  silently  endure  it. 
I  cannot  flatter  myself,  that  these  attacks  have  made  no  impression  preju- 
dicial to  my  clients.  You  would  be  more  or  less  than  human,  had  they 
not.  I  only  ask  you  now,  to  give  me  your  undivided  attention,  while  I 
shall  endeavour  to  obliterate  these  impressions,  by  stating  succinctly,  the 
true  history  of  this  controversy.  I  engage  to  satisfy  every  candid  mind, 
of  the  purity  of  my  clients'  motives,  and  of  the  justice  and  legality  of 
their  proceedings. 

In  order  properly  to  preface  our  defence,  it  will  be  necessary  to  analyze 
the  case  made,  or  attempted  to  be  made  by  the  Relators. 

It  seems  to  have  divided  itself  into  two  heads  of  charge  or  inquiry. 
First,  The  Acts  of  the  General  Assembly  of  1837,  called  by  our  adversa- 
ries, affectedly  and  ex  industria  "  The  acts  of  excision,"  but  which, 
according  to  a  fairer  nomenclature  should  be  called  "declarations  of  dis- 
connection or  disowning  acts,"  for  by  these  acts,  certain  Synods  were 
simply  pronounced  to  be  no  part  of  our  church.  Second,  The  process  of 
organization  of  the  General  Assembly  in  183S,  by  which  our  adversaries 
assert,  that  they  have  possessed  themselves  of  the  sceptre,  and  by  which 
they  claim  to  be  the  true  succession. 

As  regards  the  first  of  these  points,  the  Relators,  (as  far  as  I  can  gather 
their  meaning,)  consider  it  merely  ancillary  to  the  second,  and  indeed,  his 
Honour  only  admitted  testimony  on  this  first  point,  as  explanatory  of  that 
adduced,  or  to  be  adduced,  on  the  second.  In  other  words,  the  Relators 
have  attempted  to  show,  that  certain  commissioners  to  the  General 
Assembly  of  1838,  were  excluded  from  their  seats,  in  furtherance  of  cer- 
tain acts  of  the  General  Assembly  of  1837,  and  assuming  the  infirmity  of 
those  acts,  to  deduce  from  thence  the  invalidity  of  this  exclusion  in  1838. 
This  distinction  must  be  carefully  observed,  as  I  shall  presently  demon- 
strate to  you,  that  the  Relators  are  compelled,  by  the  necessity  of  their 
own  case,  to  admit,  that  notwithstanding  those  acts  of  alleged  dismember- 
ment passed  by  the  General  Assembly  of  1337,  that  Assembly  retained 
its  constitutional,  unimpaired  existence,  up  to  the  last  moment  of  its 
session. 

As  regards  the  Relators'  second  point,  it  is  also  to  be  observed,  that 
they  do  not  contend  that  the  exclusion  by  the  clerks,  from  the  General 
Assembly  of  1838,  of  the  delegates,  from  the  Presbyteries  in  the  four 
Synods,  violates  the  organization  of  183S.     They  apparently  admit  that 

17 


J 30  PRESBYTERIAN   CHURCH  CASE. 

the  Assembly  of  183S,  like  that  of  1837,  might  have  existed  or  lived, 
without  the  vivifying  presence  of  those  delegates.  They  merely  contend 
that  the  exclusion  was  unlawful,  and  seek  in  its  unlawfulness  a  justifica- 
tion for  certain  ulterior  operations,  which  they  now  declare  to  have  been 
a  removal  of  the  oflending  officers,  but  which  were,  as  we  shall  show, 
adopted  by  them  with  a  different  view  and  purpose. 

They  contend  that  the  General  Assembly  had  a  right  to  remove  the 
clerks  who  excluded  these  delegates  and  the  Moderator,  who,  as  they  as- 
sert, refused  to  allow  the  Assembly  to  correct  the  misconduct  of  the 
clerks  in  this  particular;  and  although  they  admit  that  a  clear  majority  of 
the  members  approved  the  conduct  of  the  clerks  and  the  Moderator,  yet, 
as  this  majority  sat  indignantly  silent,  when  Mr.  Cleaveland  made  a  dis- 
orderly motion,  if  motion  it  may  be  called,  and  treated  it  as  a  tumult  and 
an  outrage,  they  must  have  been  considered  to  have  voted  affirmatively. 
In  other  words,  that  this  was  a  vote  of  the  house,  setting  up  an  opposing 
organization,  and  committing  suicide  upon  its  own.    • 

When  their  case  is  divested  of  all  extrinsic  circumstances, , it  resolves 
itself  into  this  one  narrow,  and  truly  absurd  position,  viz.  "  That  the 
majority,  when  they  meant  ^  No^  and  declared  their  meaning  in 
every  possible  mode,  but  the  use  of  that  monosyllable,  m.ust  be  con- 
strued to  have  meant  '  Yes.'  "  As  we  conceive,  all  the  other  evidence, 
by  which  you  have  been  wearied,  is  foreign  to  this  cause;  and  this  will  be 
apparent,  when  you  reflect  that  the  power  of  the  Assembly  to  remove  its 
officers,  if  it  exists  at  all,  is  not  confined  to  the  exigency  of  their  miscon- 
duct, but  may  be  exercised  at  the  pleasure  of  the  Assembly,  with  or 
without  reason,  "  slat  2^ro  ratione  voluntas.'^  Our  adversaries  maintain 
that  the  Assembly  did  remove  these  officers:  if  it  did,  why  then  have 
days  been  wasted  in  the  attempt  to  prove  that  they  were  deserving  of  re- 
moval ? 

They  may  perhaps  mean  to  say,  "  These  officers  committed  a  wrong, 
and  a  majority  of  the  members  upheld  them,  it  was  therefore  licensable 
for  the  minority  to  practice  this  legerdemain,  although  it  is  manifest  it 
could  only  have  succeeded  by  surprise,  misconception,  and  error.'" 

If  the  members  from  the  disov/ned  Synods  have  been  injured,  (which 
we  deny)  surely  there  was  some  method,  by  which  they  and  their  fa- 
vourers might  have  brought  this  question  of  their  right  to  seats  in  the  As- 
sembly, before  the  tribunals  of  the  country,  without  the  indecorous  pro- 
ceedings which  took  place  in  1838,  and  without  destroying  the  rights  of 
those  opposed  to  them.  But,  as  we  fear,  they  have  been  governed  by 
another  spirit,  (engendered  no  doubt  by  honest  but  mistaken  motives) 
and  have  sought  to  make  a  profit  from  this  supposed  injury.  Not  content 
with  regaining  their  own  rights,  they  seek  to  usurp  those  of  others. 

Such,  gentlemen  is  the  case  of  the  relators.  We  have  endeavoured  to 
restrict  them  to  what  we  consider  the  true  issue  formed  by  the  pleadings. 
His  Honour,  however,  has  not  sustained  these  endeavours,  and  we  have 
submitted,  as  we  hope  with  grace,  to  his  decision,  although  it  entails  upon 
us  the  necessity  of  being  as  discursive  as  the  relators  have  been. 

This  unhappy  Church  has  been  for  years  a  house  divided  against  itself. 
Its  dismemberment  might  therefore  have  been  predicted  long  before  the 
catastrophe  occurred.  This  division  is  not  a  mere  logomachy,  or  war  of 
words,  as  the  counsel  for  the  relators  has  asserted,  but  a  wide  variance  in 


MR.  HUBBELL'S  OPENING.  23  j 

tenets.  Tenets  so  dissimilar,  that  like  liquids  of  different  gravity  and 
consistency,  they  cannot  be  commingled.  It  is  a  substantial  difference  on 
some  of  the  most  affecting  subjects  of  human  consideration. 

Our  party  are  for  a  strict  adherence  to  the  doctrinal  standards  of  the 
Church.  Their  party  accept  them  only  for  substance  of  doctrine.  They 
cannot  and  do  not  dispute  our  Presbyterianism,  but  theirs  is  of  a  more 
equivocal  character,  though  they  decline  from  the  standards  in  different 
degrees  of  departure.  Some  of  them  are  nearly  right,  others  are  widely 
w^rong. 

Our  doctrines  are  taught  at  the  Seminary  of  Princeton,  in  all  their  pu- 
rity. That  Institution  has,  from  its  origin,  been  the  principal  seat  of  or- 
thodoxy. There  it  is  taught  ^vith  fidelity,  defended  with  zeal,  and 
adorned  with  learning.  The  other  party  have  their  seminaries,  where 
their  peculiar  views  are  inculcated,  and  from  whence  they  are  diffused 
with  indefatigable  diligence. 

Permit  me  to  point  out  a  few  fundamental  differences  of  tenet. 
One  principally  to  be  marked,  for  it  is  the  root  of  many  others,  is  an 
■  abstract  opinion  in  regard  to  theology  itself.  We  maintain  that  it  ema- 
nated from  the  Almighty,  in  his  revelations,  in  a  state  of  entire  perfection. 
That  it  sprung  from  the  mind  of  the  Deity  in  its  full-developed,  adult  pro- 
portions, and  knew  no  infancy,  or  youth.  Our  adversaries,  on  the  con- 
trary, maintain  that  theology  is  an  advancing,  improvable  science.  That 
the  old  formularies  of  the  Christian  faith  are  too  antiquated  for  this  en- 
lightened age! 

Another  subject  of  difference  is  the  effect  of  Adam's  sin,  or  fall,  upon 
his  posterity.  Our  party  maintain  that  the  sin  of  Adam  is  imputed  to  his 
posterity — that  it  is  made  their  sin.  We  subject  our  mere  human  reason 
to  the  unequivocal  teachings  of  holy  writ,  and  for  an  explanation  humbly 
wait  the  great  teacher  Death.  Our  adversaries  on  the  contrary  maintain 
that  the  sin  of  Adam  is  not  imputed  to  his  posterity,  and  made  their  sin, 
but,  that  by  Adam's  fall,  it  is  made  absolutely  certain  and  necessary  (in 
some  incomprehensible  manner)  that  each  and  all  his  posterity  ivill  sin. 

Another  subject  of  difference  is  one  which  no  human  being,  whether 
Philosopher,  or  Christian,  can  contemplate  with  indifference.  It  is  the 
power  of  the  Deity  over  our  moral  nature.  Our  party  maintain  that  he 
is  Almighty,  not  only  over  the  physical,  but  the  moral  constitution  of 
man,  and  that  by  a  single  act  of  his  will  he  can  make  his  creature  good, 
how  deeply  soever  that  creature  may  be  immersed  in  depravity  and 
crime.  The  other  party  have  sought;  to  limit  Omnipotence,  and  say, 
"  Thus  far  shalt  thou  go  but  no  farther."  They  maintain  that  a  man  may 
be  bad  against  the  will  of  the  Deity,  and  the  only  means  by  which  he  can 
change  him  is  by  moral  suasion;  or  by  the  inciting  exhibition  of  mo- 
tives. 

Another  great  subject  of  difference  is  the  nature  of  the  sacrifice  upon 
Calvary — the  true  understanding  of  the  Atonement,  and  the  effect  of  the 
sufferings  of  Christ.  We  maintain  that  it  was  a  satisfaction  of  the  violated 
law;  a  tribute  to  Divine  justice,  by  which  a  righteous  God  was  propitiated. 
That  Christ  became  our  substitute,  and  underwent  death  for  us.  That  the 
merits  of  Christ,  his  obedience,  in  the  fulfilment  of  the  law  by  his  volun- 
tary death,  is  imputed  to  our  race  through  faith;  that  is  to  the  believers  of 
our  race,  in  the  same  tnanner  that  the  sin  of  Adam  was  imputed  to  us. 


PRESBYTERIAN  CHURCH  CASE. 

.^.i  ine other  hand,  our  adversaries  deny  the  doctrine  of  imputation,  and 
contend,  that  he  was  always  a  placable  God,  and  ready  to  bestow  pardon 
as  soon  as  govermental  justice  would  permit.  They  deny  that  his  law  re- 
quired an  infinite  victim,  or  that  Christ  yielded  himself  as  such  a  victim, 
or  bore  the  penalty  of  the  law.  They  maintain  thatjustification  is  merely 
pardon,  and  the  condition,  faith. 

Another  great  topic  of  difference  is  the  subject  of  regeneration  or  con- 
version, or  the  precise  process  or  plan  by  which  the  heart  of  the  sinner  is 
changed.  We  maintain  that  it  is  merely  an  act  of  Omnipotence.  That 
the  sinner  has  no  ability  of  his  own  to  corfcur  in  that  work;  that  his 
change  is  an  act  of  God's  grace,  and  that  it  may  be  instantaneous.  They, 
on  the  contrary,  maintain,  that  since  the  atonement  of  Christ,  the  sinner 
is  competent  to  his  own  regeneration,  and  that  the  process  is  gradual. 

Such,  gentlemen,  are  the  summa  vestiga,  or  general  outlines  of  this 
great  dispute  which  has  caused  the  separation  of  this  Church.  A  cordial 
re-union  is  impossible.  A  separation  has  been  effected  and  should  be 
made  permanent  for  the  sake  of  peace  and  religion.  This  is,  that  great 
dispute  which  has  abrupted  friendships,  divided  families,  and  engendered 
strifes.  It  is  in  your  power  to  rebuke  this  heaving  tumult  of  the  pas- 
sions, and  bid  them  be  tranquil  for  ever! 

Such,  gentlemen,  was  the  state  of  the  parties,  and  such  the  distractions 
of  this  Church,  when  the  session  of  1S37  commenced.  It  was  well  known 
throughout  the  land,  that  a  great  struggle  would  occur  at  this  session. 
The  parties,  therefore,  put  forth  their  strength  at  the  election,  and  the  de- 
cided majority  of  the  Old-school  party  on  the  floor  of  this  Assembly, 
leaves  no  doubt  that  they  were  and  are  the  predominant  party  in  this 
Church;  and  that  the  principles  of  theology,  which  they  acknowledge, 
are  the  true  tenets,  in  the  opinion  of  a  majority  of  true  worshippers  in 
this  Church,  and  that  the  doctrines  of  their  adversaries  are  heretical. 
Nor  was  this  majority  accidental,  for  it  was  even  more  decided  in  the 
Assembly  of  1838,  when,  the  relators  will  admit,  every  nerve  had  been 
strained  by  both  parties,  to  acquire  the  mastery  of  numbers. 

I  say  that  a  great  struggle  was  anticipated.  For  it  was  known  that  two 
systems  of  theology  existed  in  the  Church,  and  both  could  not  be  permit- 
ted to  be  taught  in  an  institution  expressly  formed  to  preserve  uniformity 
of  creed.  This  Church  having  adopted  a  standard  of  faith  or  a  system  of 
holy  truths,  it  admits  no  double  construction  of  them.  They  can  have 
but  one  meaning,  and  if  there  be  doubt  as  to  what  that  meaning  may  be, 
the  constitution  of  the  Church  refers  that  doubt  to  its  great  council,  which 
has  power  authoritatively  to  settle  that  doubt,  and  to  declare  what  the 
Church  shall  teach  as  the  true  construction  of  the  standards. 

Form  of  Government,  Chap.  XII.  Sect.  5.  "  To  the  General  As- 
sembly belongs  the  power  of  deciding  in  all  controversies  respecting  doc- 
trine and  discipline;  of  reproving,  warning,  or  bearing  testimony  against 
error  in  doctrine.'' 

From  the  decision  of  this  great  council  there  is  no  appeal,  and  when 
the  General  Assembly  declares  a  doctrine  heretical,  it  must  no  longer  be 
heard  in  a  Presbyterian  church.  Its  maintainers  must  either  conform  to 
this  decision,  or  go  elsewhere  and  form  new  associations;  of  which  they 
may,  at  their  pleasure,  make  what  are  heresies  when  compared  with  our 
standards^  the  orthodoxal  canons.     This  decision  of  the  General  Assem- 


MR.  HUBBELL^S  OPENING.  J33 

bly,  is  the  decision  of  the  majority  of  that  Assembly,  and  hence  it  re- 
sults, (however  harsh  it  may  seem,)  that  the  construction  which  the  ma- 
jority put  upon  the  standards  is  orthodoxy,  and  that  of  the  minority  is 
heresy.  This  power  is  necessary  to,  and  inherent  in  every  Church  es- 
tablishment, or  it  ceases  to  be  a  Church,  call  it  what  you  please.  This 
decision  may  be  given  either  in  the  process  of  a  judicial  trial,  and  be  the 
sentence  upon  an  individual  heretic,  or  it  may  be  an  abstract  declaration 
of  the  Assembly,  or  "bearing;  of  testimony"  against  heretical  doctrines. 

In  whatever  form  this  declaration  of  the  Assembly  may  be  given  against 
,a  particular  opinion,  that  opinion  is  heresy  and  must  be  abandoned  by  the 
faithful.  The  mal-contents  have  no  alternative  but  submission  or  se- 
cession. 

•  This  uniformity  of  opinion  is  neither  impracticable  nor  difficult.  This 
Church  itself  existed  nearly  half  a  century,  in  harmonious  and  halcyon 
repose.  The  two  parties  which  now  distract  it  are,  (each  being  contem- 
plated by  itself)  of  homogeneous  materials,  and  capable  of  forming  a  peace- 
ful Church. 

That  nothing  might  be  left  undone  which  Christian  charity  seemed  to 
require,  upon  a  proposition  emanating  from  a  member  of  our  party,  a  com- 
mittee was  appointed,  consisting  of  five  members  from  each  party,  for  the 
purpose  of  negotiating  an  amicable  separation.  The  effort  failed  by  the 
fault  of  our  adversaries,  for  although  they  admitted  that  "the  experience 
of  many  years  has  proved  that  this  body  is  too  large  to  insuie  the  pur- 
poses contemplated  by  the  Constitution,"  and  that  "  in  the  extension  of 
the  Church,  over  so  great  a  territory,  embracing  such  a  variety  of  people, 
difference  of  view  in  relation  to  important  points  of  Church  policy  and 
action,  as  well  as  theological  opmiofi,  are  found  to  exist,"  and  that  "a 
division  will  be  of  vital  importance  to  the  best  interests  of  the  Redeemer's 
kingdom" — I  cite  their  language.  Minutes  of  1837,  page  432 — yet  they 
imposed  one  condition,  to  which  no  true  lover  of  the  Church  could  sub- 
mit: viz.  that  the  Church  should  be  destroyed,  and  two  new  Churches 
created  from  its  fragments!  We  allowed  them  their  own  terms  in  regard 
to  their  share  in  the  property  of  the  Church,  nay,  had  they  asked  it  all,  it 
would  have  been  given  to  them,  but  as  the  majority,  as  the  possessors  and 
representatives  of  all  the  old  seats  of  Presbyterianism,  as  the  party  who 
confessedly  and  rigidly  adhered  to  her  standards,  we  asked  to  be  allowed 
to  maintain  the  succession  of  our  fathers!  Our  adversaries  would  only 
grant  us  peace,  upon  the  condition,  that  we  should  destroy  all  for  which 
we  had  hitherto  been  contending! 

It  will  now  be  my  duty  to  explain  to  you  the  real  character  of  the 
much  abused  transactions  of  1837,  by  a  studied  misnomer,  called,  the  acts 
of  excision,  viz.  the  resolution  of  the  Assembly  of  that  3'ear,  declaring  the 
Synods  of  the  Western  Reserve,  Utica,  Geneva,  and  Genesee,  to  be  no 
part  of  the  Presbyterian  Church. 

When  the  great  controversy,  which  I  have  described,  was  at  its  height, 
attention  was  drawn  to  an  imposthume  which  had  long  afflicted  the  church, 
but  which,  being  filmed  over  and  disguised,  had,  hitherto,  escaped  de- 
tection. I  mean  New  England  Congregationalism,  which  had  insidiously 
undermined  the  Presbyterian  constitution,  and  was  the  fatal  source  of  all 
these  errors  in  doctrine  which  afflicted  our  Church. 

The  New-school  pa»ty  is  emphatically  a  New  England  party,  it  being 


J  34  PRESBYTERIAN  CHURCH  CASE. 

composed,  in  a  great  measure,  of  New  Englanders,  or  their  descendants. 
New  England  Calvinism,  is  not  Presbyterianism;  they  are  Congrega- 
tionalists  or  Independents,  and  are  the  lineal  or  collateral  descendants  of  the 
English  Independents,  who  under  the  guidance  of  Cromwell,  drove  out 
Presbyterianism,  after  Presbyterianism  had  driven  out  Episcopacy.  Our 
New  England  brethren  are  proverbially  shrewd,  acute,  indefatigable,  and 
ambitious,and  are  seldom  introduced  into  our  institutions  without  becoming 
masters  of  them.  The  party  which  I  represent,  have  long  apprehended  a 
design  in  their  adversaries  to  convert  the  funds,  the  institutions,  and 
above  all,  the  name,  of  this  venerable  church  into  the  means  of  furthering 
this  peculiar  system  of  theology,  and  various  other  projects  of  their 
own. 

The  instrument  by  which  they  have  obtained  admittance  into  our 
Church,  is  a  certain  plan  or  agreement  of  Union  between  this  Church  and 
the  Congregational  Association  of  Connecticut,  adopted  in  the  yearlSOl, 
which  admits  Congregationalists,  upon  certain  terms,  which  I  shall  pre- 
sently describe,  into  the  bosom  of  this  Presbyterian  institution. 

The  essence  of  Presbyterianism  is  a  government  b}^  ruling  elders,  and 
the  profession  of  Calvinistic  doctnnes.  A  Church  which  is  deficient  in 
either  of  these  elements,  is  not  a  Presbyterian  Church.  The  doctrines 
are,  of  course,  considered  of  Divine  origin,  and  the  government  by  ruling 
elders  is  deemed  not  less  so,  and,  therefore,  it  is  not  capable  of  change  or 
modification.  The  constitution  of  this  Church  is  strictly  Presbyterian, 
both  in  these  particulars,  and  also  in  all  the  other  details  of  its  govern- 
ment. The  primary  government  is  the  church-session,  composed  of 
ruling  elders,  elected  by  the  congregation  for  life,  ordained  by  a  regular 
process,  and  pledged  to  our  written  Confession  of  Faith,  and  of  the  min- 
ister who  is  ordained  in  a  similar  manner,  by  the  Presbytery,  which  is 
the  next  highest  tribunal.  The  church-session  may  try  any  member  of 
the  congregation,  for  ecclesiastical  offences,  with  an  appeal  to  the  Pres- 
bytery, but  the  church-session  cannot  try  or  dismiss  the  minister. 
When  once  ordained,  this  clerical  officer  holds  independently  of  his  con- 
gregation, and  is  only  amenable  to  his  Presbytery.  The  Congregational 
system  has  no  church-session  composed  of  ruling  elders,  elected  and  or- 
dained for  life.  It  wants  this  essential,  and,  as  we  believe-,  apostolical 
feature  of  Presbyterianism.  The  government  of  the  Congregational 
churches,  is  vested  in  the  whole  of  the  male  members  of  each  church. 
They  elect  their  own  ministers  and  depose  them  at  will.  They  have  no 
Confession  of  Faith.  Each  church  is  independent  of  all  others,  or  only 
connected  in  associations  for  mutual  advice.  In  the  Presbyterian  Church 
there  is,  on  the  contrary,  a  regular  system  of  connexion  and  subordina- 
tion. Above  the  church-session,  and  controlling  it  by  appeals  and  other- 
wise, is  the  Presbytery,  which  has  ecclesiastical  rule  over  a  territory  con- 
taining several  churches.  All  the  ministers,  and  a  representative  ruling 
elder  from  each  church  within  this  territory,  compose  the  Presbytery. 
These  Presbyteries  are  the  constituent  bodies,  which  are  represented  by 
delegates  in  the  General  Assembly.  The  Synods  arc  judicatories  supe- 
rior to  the  Presbyteries,  embracing  a  wider  territorial  jurisdiction,  but  as 
they  are  not  represented  in  the  General  Assembly,  are  no  more  in  the 
Church  polity,  than  an  appellate  judicatory. 

Here,  gentlemen,  let  me  pause,  and  request  you  to  observe  the  effect  of 


MR.  HUBBELL'S  OPENING.  J35 

this  constitution  of  things.  The  delegates  to  the  General  Assembly  are 
elected  by  the  Presbyteries,  and  the  delegates  who  compose  the  Presby- 
teries, must  be  ruling  elders  from  the  churches.  Of  course,  it  results, 
that  if  there  be  any -thing  vitious  and  unconstitutional  in  the  primary  de- 
legation, that  is  from  the  churches  to  the  Presbytery,  it  will  affect  and 
vitiate  that  from  the  Presbyteries  to  the  General  Assembly.  If  the 
churches  should  send  mere  laymen,  instead  of  ordained  elders  to  the 
Presbyteries,  these  Presbyteries  are  vitiously  constituted,  and  the  dele- 
gates from  such  Presbyteries,  to  the  General  Assembly,  are  elected  by  a 
,  false  and  unconstitutional  constituency. 

On  the  apex  of  tliis  pyramid  of  subordinate  tribunals,  sits  that  august 
body,  the  General  Assembly.  It  unites  the  wisdom  of  all,  and  by  the 
weight  and  pressure  of  its  authority,  keeps  the  inferior  parts  in  their  true 
position,  and  preserves  the  beautiful  symmetry  of  the  whole. 

But  the  Plan  of  Union  marred  this  structure,  for  it  provides,  among 
other  things, 

"  That  if  any  congregation  consists  partly  of  those  who  hold  the  Con- 
gregational form  of  discipline,  and  partly  of  those  who  hold  the  Presby- 
terian form,  we  recommend  to  both  parties,  that  this  be  no  obstruction  to 
their  uniting  in  one  church,  and  settling  a  minister.  And  that,  in  this 
case,  the  church  choose  a  standing  committee  from  the  comm.unicants, 
whose  business  it  shall  be,  to  call  to  account  every  member  of  the  church 
who  shall  conduct  himself  inconsistently  v/ith  the  laws  of  Christianity,  and 
to  give  judgment  on  such  conduct.  And  if  the  person  condemned  by  this 
judgment,  be  a  Presbyterian,  he  shall  be  at  liberty  to  appeal  to  the  Pres- 
bytery; if  a  Congregationalist,he  shall  be  at  liberty  to  appeal  to  the  body 
of  male  communicants  of  the  church:  in  the  former  case,  the  determina- 
tion of  the  Presbytery  shall  be  final,  unless  the  church  consent  to  a 
further  appeal  to  the  Synod,  or  to  the  General  Assembly;  and  in  thellatter 
case,  if  the  party  condemned  shall  wish  for  a  trial,  by  a  mutual  council, 
the  cause  shall  be  referred  to  such  council.  And  provided,  the  said  stand- 
ing committee  of  any  church,  shall  depute  one  of  themselves,  to  attend  the 
Presbytery,  he  may  have  the  same  right  to  sit  and  act  in  the  Presbyter}', 
as  a  ruling  elder  of  the  Presbyterian  Church."     Jisseiii.  Dig.  p.  298. 

This  Plan  of  Union  was  adopted  at  the  solicitation  of  the  Association  of 
Connecticut,  and  it  was  intended  as  a  temporary  provision,  to  foster  the 
formation  of  churches  on  the  frontier,  "with  a  view  to  prevent  alienation, 
and  to  proniote  union  and  harmony,  in  those  new  settlements,  which  are 
composed  of  inhabitants  from  these  bodies."     Jlssem.  Dig.  p.  297. 

Every  provision  of  this  Plan  of  Union  which  I  have  read  to  you,  is  a 
violation  of  the  Constitution  of  the  Presbyterian  Church.  It  introduces, 
into  the  body  of  the  Presbyterian  Church,  whole  congregations  of  com- 
municants who  have  not  professed  our  standards  of  faith — who  are  not 
governed  by  ruling  elders — -and  who  are,  therefore,  not  Presbyterians. 
It  enables  congregations  to  send  unordained  lay  delegates  to  the  Presby- 
teries. It  takes  away  from  Presbyterians  the  right  of  appeal  from  the 
decisions  of  the  Presbyteries.  It  introduces  into  the  body  of  the  Church 
persons  who  are  not  subject  to  the  tribunals  of  the  Church.  If  the  Pres- 
byterian form  of  government  in  its  essential  features,  be  of  divine  origin, 
(which  is  the  faith  of  our  Church,)  then  these  alterations  in  its  essential 


13G 


PRESBYTERIAN  CIUJRCH  CASE. 


structure,  would  under  any  circumstances,  be  without  warrant  or  founda- 
tion, but  considered  simply  as  human  institutions,  the  alterations  were 
void,  because  not  submitted  to  the  Presbyteries. 

"  Before  any  overtures  or  regulations  proposed  by  the  Assembly,  to  be 
established  as  constitutional  rules,  shall  be  obligatory  on  the  churches;  it 
shall  be  necessary  to  transmit  them  to  all  the  Presbyteries,  and  to  receive 
the  returns  of  at  least  a  majority  of  them  in  writing,  approving  thereof.'^ 
For7n  of  Gov.  Chap.  XIL  Sect.  6. 

They  will  be  void  too  in  the  consideration  of  this  civil  tribunal,  as  con- 
flicting with  the  act  of  the  Legislature  of  Pennsylvania,  incorporating  the 
"  Trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States  of  America."  The  power  of  electing  these  trustees  being 
given  to  "  the  ministers  and  elders  forming  the  General  Assembly  of  the 
Presbyterian  Church." 

Besides  the  direct  unconstitutional  provisions  in  this  Plan  of  Union, 
it  was  made  the  cover  of  various  other  unconstitutional  practices.  This 
plan  provides,  in  the  section  read,  for  mixed  churches;  but  pure  Congre- 
gational churches,  without  any  intermixture  of  Presbyterianism,  owing  to 
the  laxity  produced  by  the  Plan  of  Union,  sent  their  unordained  lay  de- 
legates to  the  Presbyteries,  and  they  were  admitted. 

When  controversy  called  attention  to  this  subject,  it  was  ascertained, 
that,  by  means  of  this  Plan  of  Union,  and  the  abuses  that  originated  with 
it,  there  were,  in  the  bounds  of  the  Synod  of  the  Western  Reserve,  one 
hundred  and  nine  churches,  out  of  one  hundred  and  thirty-nine,  purely 
Congregational  or  mixed.  And  in  the  Synods  of  Utica,  Geneva,  and 
Genesee,  two  fifths  of  the  churches  were  Congregational  or  mixed.  Here 
was  this  vast  body  of  Congregationalists,  although  denying  our  standards, 
rejecting  and  scoffing  at  our  form  of  government,  and  in  no  wise  subject 
to  our  discipline,  or  to  our  tribunals,  yet  participating  in  our  counsels,  vot- 
ing upon  our  questions  of  faith  or  doctrine,  and  actually  inflicting  upon 
us  the  discipline  of  a  code,  whose  authority  upon  themselves  they  utterly 
denied.  They  were  themselves  conscious  of  the  absurdity  of  their  claims, 
and  of  our  submission  to  them,  and  therefore,  in  the  statistical  reports 
which  they  made  to  the  Assembly,  disguised  themselves  under  the  name 
of  Presbyterian  churches. 

In  the  great  struggle  which  was  anticipated  between  the  parties  thus 
divided,  it  was  the  determination  of  those  whom  I  represent,  that  none 
but  Presbyterians  shoukl  participate,  and  in  this  determination  originated 
the  acts,  in  regard  to  which  there  has  been  so  much  clamour.  That  the 
purpose  was  just,  constitutional,  and  proper,  none  who  have  heard  my 
statement  can  doubt.  The  question  now  to  be  agitated  is,  whether  the 
means  used  to  effect  that  purpose  were  equally  commendable. 

These  means  were,  the  passing  of  a  resolution  by  the  General  Assem- 
bly, abrogating  the  Plan  of  Union,  as  unconstitutional  and  void  from  its 
origin,  and  certain  acts  disowning  the  Synods  of  the  Western  Reserve, 
Utica,  Genesee  and  Geneva. 

Our  adversaries  have  thought  fit  to  represent  these  acts  as  tyrannical, 
because  (as  they  assert)  they  disfranchised  five  hundred  ministers,  five 
hundred  and  ninety-nine  churches,  and  sixty  thousand  communicants. 
This  statement  has  been  so  often  repeated,  and  so  many  changes  have  been 


MR.  HUBBELL'S  OPENmG.  I37 

rung  upon  it^  that  you  will  perhaps  be  surprised  to  hear  me  assert  that  it 
is  untrue.  I  will  presently  prove  to  you,  that  no  minister,  church,  or 
communicant  has  been  disfranchised  by  these  acts. 

Our  adversaries  have  also  thought  fit  to  represent  these  act&  as  a  con- 
demnation without  hearing  of  five  hundred  ministers,  five  hundred  and 
ninety-nine  churches,  and  sixty  thousand  communicants,  this  is  also  untrue. 

These  acts  were  simply  requisitions  made  by  the  General  Assembly, 
upon  the  Presbyteries  and  churches  within  the  bounds  of  these  Synods,  that 
they  should  ask  such  Congregational  churches,  as,  under  the  Plan  of 
,  Union,  or  by  falsely  representing  themselves  to  be  Presbyterians,  had 
gained  access  to  the  judicatories  of  the  Church,  to  adopt  our  form  of 
government,  or  if  they  refused  then,  to  shake  them  off.  So  far  from  dis- 
franchising 599  churches,  none  were  to  be  excluded  from  our  connexion, 
if  they  would  adopt  our  form  of  government;  or,  in  the  case  of  their 
obstinate  nonconformity,  the  measure  would  result  in  the  exclusion  of  but 
two  hundred  and  sixty-nine  churches,  or  thereabout,  that  being  the  esti- 
mated number  of  Congregational  churches  in  the  bounds  of  these  Synods. 
The  residue  of  the  599  churches  being  Presbyterian,  were  in  no  substan- 
tial manner  affected  by  these  acts.  As  to  the  509  ministers,  they  were 
not,  in  the  least  degree,  the  subject  of  these  measures,  for  none  of  them 
were  Congregational;  the  clergy  of  this  district  having,  almost  without 
exception,  caused  themselves  to  be  ordained  as  Presbyterians,  preferring, 
no  doubt,  the  more  stable  tenure  of  office  which  that  institution  afforded 
them.  These  disowning  acts  simpl}^  required  of  them,  to  leave  one  Pres- 
bytery and  go  to  another  most  convenient  to  themselves.  As  regards  the 
60,000  communicants,  if  the  churches  in  which  they  worshipped  did  not 
choose  to  adopt  the  Presbyterian  form  of  government,  each  individual  had 
but  to  enter  the  nearest  Presbyterian  church,  and  claim  the  benefits  of 
communion .  As  regards  them,  those  denounced  acts  merely  require  them 
not  to  continue  to  worship  in  churches,  which  would  not  adopt  our  disci- 
pline and  order. 

That  such  is  the  true  operation  of  these  acts,  will  be  apparent  to  any 
unprejudiced  man  who  will  peruse  them. 

They  are,  perhaps,  unskilfully  drawn,  and  if  but  part  of  them  be  read, 
they  seem  to  justify  the  aspersions  of  our  adversaries,  but  if  the  whole  be 
read  together,  then  the  injustice  which  has  been  done  to  us  will  be 
apparent. 

"That  in  consequence  of  the  abrogation  by  this  Assembly  of  the  Plan 
of  Union  of  1801,  between  it  and  the  General  Association  of  Connecticut 
as  utterly  unconstitutional,  and  therefore  null  and  void  from  the  beginning, 
the  Synods  of  Utica,  Geneva,  and  Genesee,  which  were  formed  and 
attached  to  the  body  under,  and  in  execution  of  this  Plan  of  Union  be,  and 
are  hereby  declared  to  be  out  of  the  ecclesiastical  connexion  of  the  Pres- 
byterian Church  in  the  United  States  of  America,  and  that  they  are  not  in 
form  or  in  fact  an  intregal  portion  of  said  Church." 

He  that  should  stop  here,  would  perhaps  deceive  you  and  himself,  but 
let  us  continue. 

"  That  inasmuch  as  there  are  reported  to  be  several  churches  and  mi- 
nisters, if  not  one  or  two  Presbyteries,  now  in  connexion  with  one  or 
more  of  said  Synods,  which  are  strictly  Presbyterian  in  doctrine  and  or- 
der, be  it  therefore  furtlier  resolved,  that  all  such  churches  and  ministers 

IS 


138  PRESBYTERIAN  CHURCH  CASE. 

as  wish  to  unite  with  us,  are  hereby  directed  to  apply  for  admission  into 
those  Presbyteries  belongino;  to  our  connexion,  which  are  most  conve- 
nient to  their  respective  locations;  and  that  any  such  Presbytery  as  afore- 
said, bein«strictly  Presbyterian  in  doctrine  and  order,  and  now  in  con- 
nexion with  either  of  said  Synods,  as  may  desire  to  unite  with  us,  are 
hereby  directed  to  make  application,  with  a  full  statement  of  their  cases, 
to  the  next  General  Assembly,  which  will  take  proper  order  thereon." 
From  this  it  is  manifest  that  the  nature,  character,  and  object  of  these 
acts  are  just  what  I  have  asserted,  and  no  more.  No  Presbyterian  mi- 
nister is  injured,  unless  it  be  an  injury,  which  entitles  him  to  turn  his 
parricidal  Jiand  against  his  Church,  that  the  General  Assembly  has  remo 
ved  his  connexion  from  one  Presbytery  to  another,  and  that  other  of  his 
own  selection.  No  Presbyterian  church  is  injured,  unless  it  be  an  inju- 
ry to  detach  them  from  one  Presbytery  and  annex  them  to  another.  I 
have  not  heard  from  our  adversaries,  how  these  removals  were  injuries, 
except  that  by  the  statutes  of  the  Church,  when  a  minister  removes  from 
one  Presbytery  to  another,  he  is  bound  to  undergo  an  examination  on 
practical  religion!  Would  it  not  be  as  well  for  the  Church,  that  all  its 
pastors  should  undergo  such  an  examination  periodically?  It  certainly 
can  be  no  great  hardship,  when  the  ministers  themselves  select  the  Pres- 
byteries to  which  they  will  apply.  As  regards  the  Presbyteries  in  these 
Synods,  which  are  strictly  Presbyterian  in  doctrine  and  order,  a  kindly 
provision  is  made  for  them.  But  were  it  otherwise,  it  would  be  a  mat- 
ter of  indifference,  for  when  the  churches  and  ministers  are  provided  for, 
all  that  equity  and  justice  require  is  fulfilled  ;  the  Presbyteries  are  mere- 
ly artificial  bodies,  and  incapable  of  having  rights  apart  from  those  of 
their  constituents.  They  are,  it  is  true,  in  some  sense,  the  constituent 
bodies  of  the  General  Assembly,  but  that  is  merely  in  the  sense  of  elec- 
toral colleges,  sending  delegates  to  represent,  not  their  own  rights,  but 
those  of  their  constituents.  Thus  I  have  demonstrated,  that,  by  these 
acts,  no  essential  part  of  the  Presbyterian  Church  was  exscinded,  except 
at  their  own  election  and  by  their  own  obstinacy.  These  acts  do  not 
compel  the  Presbyteries,  churches,  and  ministers,  to  continue  their  con- 
nexion with  us,  but  merely  by  requiring  from  them  an  act  of  adhesion, 
put  it  in  the  power  of  the  malcontents,  to  retire  and  voluntarily  relin- 
quish the  connexion  with  us.  With  the  same  view,  the  disowning  acts 
contain  the  following  provisions. 

"  That  the  General  Assembly  has  no  intention,  by  these  resolutions,  to 
affect  in  any  way  the  ministerial  standing  of  any  members  of  either  of 
said  Synods  ;  nor  to  disturb  the  pastoral  relation  in  any  church  ;  nor  to 
interfere  with  the  duties  or  relations  of  private  Christians  in  their  re- 
spective congregations  ;  but  only  to  declare  and  determine  according  to 
the  truth  and  necessity  of  the  case,  and  by  virtue  of  the  full  authority  ex- 
isting in  it  for  that  purpose,  the  relation  of  all  said  Synods,  and  all  their 
constituent  parts,  to  this  body  and  to  the  Presbyterian  Church  in  the 
United  States." 

It  was  contemplated,  as  I  have  said,  that  the  Presbyterians  in  these 
Synods  might  prefer  their  Congregational  Associations  to  ours;  this  de- 
claration was  therefore  adapted  to  such  a  contingency.  It  leaves  them  a 
complete  church  system  should  they  choose  to  declare  their  independence. 
These  acts  did  not  go  into  those  Synods,  Presbyteries,  and  churches,  and 


MR.  HUBBELL'S  OPENING.  ,  139 

expurge  them  of  Congregationalism,  and  thus  reduce  them  to  a  fragmen- 
tary state,  but  by  acting  upon  whole  Synods,  they  benevolently  gave  these 
churches  the  option  of  our  communion,  or  of  a  separate  organization  of 
their  own,  ready  to  their  hands,  in  Synods,  Presbyteries,  and  churches. 
And  here  let  me  observe,  that  we  are  in  the  habit  of  calling  our  Church 
the  Presbyterian  Church,  whereas,  it  is  more  properly  a  Presbyterian 
Church:  connexion  with  us  is  not  necessary  to  Presbyterianism.  There 
may  be,  and  are  in  this  country  other  Churches  essentially  Presbyterian, 
which  are  unconnected  with  .us.  Those  churches  which  might  retire 
from  our  connexion  would  not  thereby  lose  their  Presbyterian  character, 
if  otherwise  entitled  to  it. 

Many  clergymen  and  churches  within  these  Synods,  have  conformed 
to  the  .requisitions  of  the  disowning  acts,  and  are  now  in  full  connexion 
with  our  Church.  The  mass  of  them  have  refused  to  comply.  They 
met  in  convention,  and  determined  to  reject  the  means  of  restoration  which 
we  pointed  out  to  them,  and  resolved  to  cast  themselves  upon  us  with 
their  burthen  of  Congregationalism;  and  now  as  a  means  of  tyrannizing 
over  us,  falsely  represent  that  w^e  have  tyrannized  over  them. 

The  other  untrue  representation,  with  which  our  adversaries  have  en- 
deavoured to  excite  passion  and  prejudice  against  us,  is,  that  we  have 
condemned  five  hundred  and  ninety-nine  churches,  five  hundred  and  nine 
ministers,  and  sixty  thousand  communicants  without  a  trial,  or  an  op- 
portunity of  defence.  I  have  just  demonstrated  that  it  is  only  the  Con- 
gregational portion  of  these  five  hundred  and  ninety-nine  churches,  and 
sixty  thousand  communicants  which  has  been  affected  by  these  acts. 
This  action  of  the  General  Assembly  to  expurgate  Congregationalism, 
bears  no  resemblance  to  a  condemnation,  and  it  would  have  been  im- 
possible to  have  subjected  the  obnoxious  churches  to  a  trial.  Try  them! 
for  what?  For  being  Congregational  in  their  order?  That  certainly  is 
no  crime.  Try  them!  they  do  not  acknowledge  your  jurisdiction,  they 
participate  in  governing  you  by  sending  their  lay  delegates  into  your  ju- 
dicatories, but  they  are  not  subject  to  your  tribunals.  The  only  tribunal 
to  which  they  are  subject  by  the  Plan  of  Union  is  their  own  congrega- 
tion! Thus  they  must  try  themselves  if  they  are  tried  at  all!  and  the 
only  appeal  from  this  tribunal  is  to  the  Association  to  which  they  be- 
long. I3ut  perhaps  the  Presbyteries  must  be  tried  for  admitting  Con- 
gregational delegates.  Until  the  Plan  of  Union  was  abrogated,  this  was 
no  offence,  the  Presbyteries  were,  by  the  existing  laws,  bound  to  receive 
these  delegates.  It  is  only  then  by  continuing  to  admit  such  delegates, 
after  the  abrogation  of  that  Plan,  that  they  would  become  obnoxious  to 
censure;  in  other  words,  the  abrogation  of  the  Plan  of  Union  made  it 
necessary  for  tlic  Presbyteries  to  purify  themselves  of  Congregationalism, 
and  this  is  substantially  the  whole  effect  of  these  disowning  acts.  The 
entertaining  of  these  Congregational  delegates  was  no  crime,  before  the 
abrogation  of  the  Plan  of  Union,  for  which  there  could  be  a  trial,  and  the 
disowning  acts  prevented  its  becoming  a  crime  thereafter.  The  General 
Assembly  has  unquestionably  the  power  to  create  Presbyteries  and  Sy- 
nods: as  to  the  latter,  it  is  expressly  given  by  the  Constitution;  and  as  to 
the  former,  it  is  a  power  of  necessary  implication,  and  has  been  repeated- 
ly exercised  without  question.  If  the  General  Assembly  has  power  for 
the  convenience  of  tlie^Church,  to  erect  Presbyteries  and  Synods,  she  has 


140 


PRESBYTERIAN  CHURCH  CASE. 


necessarily  the  power  to  dissolve  or  destroy  them,  when  the  like  conve- 
nience requires  it.  Had  the  General  Assembly  dissolved  those  Synods 
and  Presbyteries,  and  declared  the  churches  and  ministers  within  their 
bounds  to  be  united  to  the  adjacent  Synods  and  Presbyteries,  all  must 
have  admitted  that  this  was  a  constitutional  proceeding,  and  we  should 
have  had  no  clamour  of  disfranchisement  and  condemnation  without 
hearino-.  How  does  our  proceeding  differ  from  this.  I  have  shown  that 
we  have  substantially  united  all  the  Presbyterian  churches  and  ministers 
to  the  adjacent  Presfoyteries,  we  have,  however,  excluded  the  Congrega- 
tionalists;  in  this  consists  the  distinction,  if -there  be  any;  our  right  to 
exclude  them  rests  upon  the  unconstitutionality  of  the  Plan  of  Union.  If 
that  arrangement  was  unconstitutional  and  void,  the  party  who  claims  the 
benefit  of  it  is  not  to  be  tried  and  condemned  for  his  unconstitutional 
claim,  but  the  party  from  whom  is  sought  performance  of  the  illegal  ar- 
rangement, may  refuse  on  the  ground  of  its  invalidity  and  unsoundness. 
This  is  substantially  what  the  General  Assembly  has  .done. 

It  were  a  waste  of  time  to  discuss  whether  the  powers  of  the  General 
Assembly  are  judicial,  or  legislative.  She  here  acted  in  the  mere  simple 
and  uncomplicated  character  of  a  party  to  an  arrangement,  called  upon  to 
fulfil  that  arrangement,  but  declining  because  the  arrangement  was  illegal 
and  void.  These  acts  may  be  justified  in  another  aspect.  The  General 
Assembly  is  a  representative,  deliberative  body,  and  entitled  to  determine 
upon  the  qualifications  of  those  who  may  claim  membership.  This  is  not 
only  the  general  law  in  regard  to  such  bodies,  but  has  been  for  years  the 
practice  of  this  very  Assembly.  The  constituency  of  this  Assembly  is  pe- 
culiar: it  consists  not  of  natural  persons,  but  of  artificial  bodies.  The 
right  to  determine  claims  of  membership  involves  the  right  to  decide  the 
qualifications  of  the  electors,  and,  if  those  electors  be  artificial  bodies,  to 
ascertain  their  legal  organization.  When  these  artificial  bodies  admit  into 
their  structure  materials  of  an  unqualified  and  vitious  nature,  may  not  the 
Assembly  require  the  expurgation  of  these  materials? 

The  Plan  of  Union  I  have  demonstrated  to  be  unconstitutional.  It  is 
sought,  however,  to  maintain  it,  and  supply  the  want  of  the  approval  of  the 
Presbyteries  by  their  long  acquiescence.  An  unconstitutional  statute  re- 
maining on  the  statute  book,  unused  and  inactive,  would  not  be  considered 
as  acquiesced  in,  because  it  is  not  repealed.  It  is  its  use  and  effects  that 
may  be  the  subject  of  acquiescence.  Before  this  presumption  arises,  it 
must  be  shown,  that  the  parties  acquiescing  were  aware  of  the  facts,  and 
events  which  they  are  to  be  construed  to  have  approved.  These  Congre- 
gational churches  have  grown  up  insidiously  and  in  disguise,  and  until  re- 
cently were  unknown  to  the  great  majority  of  the  Presbyteries.  Un- 
der such  circumstances  there  can  be  no  acquiescence.  Had  these  churches 
represented  themselves  in  the  statistical  reports  which  they  presented 
yearly  to  the  General  Assembh^,  as  Congregational,  we  should  have  yearly 
acquiesced  ;  but  when  in  these  reports  they  have  represented  themselves 
to  be  Presbyterian  churches,  we  can  only  be  construed  to  have  acquiesced, 
by  being  construed  to  have  disbelieved  them.  We  will,  however,  put  it 
on  higher  grounds,  the  incorporating  act  is  for  the  benefit  of  a  Presbyteri- 
an Church,  and  nothing  short  of  the  power  of  the  Legislature  can  make  it, 
in  whole,  or  in  part,  Congregational.  The  government  by  ruling  elders, 
according  to  the  faith  of  this  Church,  is  of  apostolical  and  divine  institu- 


MR.  HUBBELL'S  OPENING.  J  41 

tion  ;  the  action  or  acquiescence  of  the  Presbyteries  may  change  the  con- 
stitutional rules,  but  cannot  alter  the  essential  doctrines  of  the  Church, 
which  claim  a  heavenly  origin. 

But  whatever  may  have  been  the  infirmity  of  these  proceedings,  in 
1837,  they,  by  the  confession  of  our  adversaries,  did  not  destroy  the  As- 
sembly of  that  year.  On  the  contrary,  it  continued  its  legal  existence  up 
to  the  last  hour  of  its  session,  when  it  was  regularly  and  constitutionally 
dissolved,  and  was  from  thenceforth  to  be  accounted  with  things  that  were 
and  are  not.  For  by  the  Constitution  of  this  Church,  the  General  As- 
<sembly  is  a  deciduous  body.  It  endures  but  one  session,  and  the  General 
Assembly  of  any  one  year,  is  not  a  continuation  of  the  General  Assembly 
of  the  preceding  year,  but  a  new  and  independent  body.  The  succession, 
the  principle  of  identity  is  preserved  in  the  Church  itself,  and  not  in  the 
General  Assembly.  Hence  at  the  end  of  of  its  session,  the  Moderator 
pronounces  it  dissolved,  and  calls  another^  for  the  ensuing  year,  and  pro- 
claims the  time  and  place  at  which  such  ensuing  Assembly  shall  meet. 

"Each  session  of  the  Assembly  shall  be  opened  and  closed  with  prayer. 
And  the  whole  business  of  the  Assembly  being  finished,  and  the  vote  ta- 
ken for  dissolving  the  present  Assembly,  the  Moderator  shall  say  from 
the  chair — 'By  virtue  of  the  authority  delegated  to  me,  by  the  Church,  let 
this  General  Assembly  be  dissolved,  and  I  do  hereby  dissolve  it,  and  re- 
quire another  General  Assembly,  chosen  in  the  same  manner  to  meet 
at  on  the  day  of  A.  D. '" — Form  of  Govern- 

ment, Chap.  xii.  Sect.  8. 

When,  therefore,  on  the  Sth  day  of  June,  1837,  the  Assembly  of  that 
year  resolved : 

"  That  this  General  Assembly  be  dissolved;  and  another  General  As- 
sembly, chosen  in  like  manner,  be  required  to  meet  in  the  Seventh  Pres- 
byterian Church,  in  the  city  of  Philadelphia,  on  the  third  Thursday  of 
May,  1838,  at  11  o'clock,  A.  M."  and  "the  Moderator  dissolved  the  As- 
sembly accordingly,"  That  Assembly  ceased  to  exist  for  good  or  ill,  and 
the  Assembly  of  1838  came  together  with  authority,  powers,  and  faculties 
unimpared  by  any  acts  of  the  preceding  Assembly.  Particularly  in  the 
matter  of  admitting  or  rejecting  members,  and  deciding  on  their  qualifi- 
cations, &c.,  it  was  bound  to  take  no  directions  from  the  preceding  As- 
sembly. The  members  of  the  General  Assembly  of  1838  may  not  have 
been,  and  in  point  of  fact  many  of  them  had  not  been  members  of  the  As- 
sembly of  1837.  You  will  presently  see,  gentlemen,  the  important  bear- 
ing of  these  considerations.  I  have  said  that  our  adversaries  have  recog- 
nised the  continued  legal  existence  of  the  Assembly  of  1837,  down  to  the 
last  day  of  its  session.  Among  the  many  proofs  of  this  fact,  let  me  select 
two.  The  New-school  organization,  if  organization  it  can  be  called, 
commenced  with  Mr,  Cleaveland's  declaration:  "  We  have  been  advised 
by  counsel  learned  in  the  law,  that  a  constitutional  organization  of  the  As- 
sembly must  be  secured  at  this  time  and  in  this  place,"  Now  as  it  was 
the  very  last  resolution  of  the  General  Assembly  of  1837  to  fix  that  time 
and  place  for  the  organization  of  the  Assembly  of  1838,  this  proceeding  of 
Mr.  Cleaveland  clearly  recognises  the  capability  of  that  Assembly  to  do 
legal  and  valid  acts,  after  the  members  from  the  four  Synods  were  exclu- 
ded. Again,  the  General  Assembly  of  1837,  after  disowning  the  Synod 
of  the  Western  ResefWe,  elected  three  Trustees  to  supply  vacancies  which 


242  PRESBYTERIAN  CHURCH  CASE. 

had  occurred  in  the  Board  of  Trustees.  Now  it  is  manifest,  that  if  this 
disowning  act  was  a  dismemberment  of  the  Church,  and  the  excluding  or 
excision  of  a  material  part  of  the  corporation,  then  this  decision  was  in- 
valid. The  members  so  excluded  endeavoured  to  treat  it  in  that  light, 
and  gave  notice  to  the  Trustees  not  to  recognise  any  orders,  which  might 
be  made  upon  them  by  this  dismembered  Assembly  for  the  disbursement 
of  money.  But  the  New-school  Assembly  of  183S,  thought  otherwise; 
for  when  they  were  about  electing  the  Relators  as  trustees,  they  expressly 
declared  that  there  were  no  vacancies  in  the  Board.  A  declaration  which 
would  have  been  untrue,  had  the  Assemby  of  tS37  been  incapable  of  valid 
action  after  the  supposed  dismemberment.  Nor  was  this  a  7nere  decla- 
ration, for  by  the  standing  rules  it  is  provided  "  When  the  day  of  election 
arrives,  the  Assembly  shall  ascertain  what  vacancies  in  the  number  of  the 
eighteen  trustees  incorporated,  have  taken  place  by  death  or  otherwise; 
and  shall  first  proceed  to  choose  other  members  in  their  places."  tdssem. 
Dig.,  199.  The  declaration  of  the  New-school  Assembly  to  which  I 
allude  is  in  these  words: 

"  At  ten  o'clock  the  Assembly  proceeded  to  the  order  of  the  day,  viz. 
the  election  of  six  Trustees  of  the  General  Assembly.  Messrs.  Bogue, 
Brown,  and  Chapin,  were  appointed  to  receive  the  ballots,  and  report  the 
result.  The  Assembly  ascertained  that  no  vacancies  in  the  Board  of 
Trustees,  have  occurred  by  death  or  otherwise.'"  New-school  Minutes 
of  IS3S, p.  654. 

I  have  taken  pains  to  prove  this  position  for  two  purposes;  first,  to 
show,  that  if  the  disowning  acts  were  unconstitutional  and  void,  they  did 
not  destroy  the  General  Assembly,  and  make  it  a  hcereditas  Jacens,  into 
which  any  straggler  might  enter  and  become  the  occupant:  and,  secondly, 
to  show  that,  as  the  organization  of  1837  continued  valid  after  the  remo- 
val of  the  members,  from  the  Synods  in  question,  so  the  Assembly  of 
1838,  might,  also,  be  validly  organized,  upon  the  principle  of  their  exclu- 
sion. 

I  have  endeavoured  to  demonstrate,  that  the  General  Assembly  of 
1837,  was  entirely  dissolved  at  the  close  of  its  session.  And  that  the 
Assembly  of  1838,  was  a  new  and  independent  body,  for  the  obvious  pur- 
pose of  demonstrating  that  the  proceedings  of  1838,  must  stand  or  fall  by 
their  own  intrinsic  merit  or  demerit,  and  can  derive  neither  detriment 
nor  aid  from  the  preceding  session,  except  so  far  as  the  proceedings  of  any 
anterior  year,  form  a  precedent,  or  rule  of  action,  to  be  respected  and 
obeyed  by  the  ministerial  officer,  for  the  time  being,  until  the  succeeding 
Assembly  shall,  in  the  exercise  of  its  free  and  unshackled  independence, 
abolish  such  rules. 

Now,  let  us  examine  the  proceedings  of  1838.  The  Relators  have 
brought  witness  after  witness,  to  prove  that  the  clerks  rejected  the  mem- 
bers from  the  four  Synods,  that  Mr.  Fatten  moved  to  have  their  names 
added  to  the  roll,  that  his  motion  was  declared  out  of  order,  that  he 
appealed,  that  his  appeal  was  declared  out  of  order;  that  Dr.  Mason  made 
a  motion  to  the  same  effect,  which  was  also  declared  out  of  order,  that  he 
appealed,  and  his  appeal  was  declared  to  be  out  of  oi'der;  that  Mr.  Squier 
demanded  his  seat  in  the  house,  and  that  his  demand  was  refused;  and 
that  Mr.  Cleaveland,  rose,  and  declared,  as  the  reason  for  the  step,  he  was 
about  to  take,  that  the  members  from  the  four  Synods,  had  been  refused 


MR.  HUBBELL'S  OPENING.  143 

their  seats;  and,  then,  treating  the  chair  as  vacant,  moved  that  Dr.  Beman 
should  take  it;  that  this  motion  was  carried  by  the  acclamations  of  their 
partizans,  no  one  voting  in  the  negative,  and,  also,  several  succeeding 
motions,  by  which  acomplete  set  of  officers  were  created,  and  the  virtue, 
(as  they  maintain,)  entirely  extracted  from  the  old  organization,  under  the 
former  officers,  who  were  left  sitting  in  their  places,  holding  their  barren 
sceptres,  divested  of  all  real  authority.  Now,  I  will  undertake  to  demon- 
strate, both  from  the  Relators'  testimony,  and  that  which  we  will  produce 
on  our  side,  that  the  whole  of  these  proceedings,  from  the  beginning  to 
the  end,  were  a  series  of  the  most  ridiculous  blunders.  That  these  gen- 
tlemen came  into  the  Assembly,  with  a  programme  of  conduct  to  be  pur- 
sued, but  that  the  exigency  which  they  anticipated  did  not  occur,  and  yet 
tiiey  performed  their  premeditated  parts,  and  left  the  incongruities  to  sub- 
sequent explanation. 

By  the  constitution  of  this  Church,  the  presiding  officer,  called  the 
Moderator,  and  the  clerks,  of  the  preceding  Assembly,  act  as  the  officers 
of  the  succeeding  Assembly,  until  it  is  organized,  and  chooses  officers  of 
its  own.  Previously  to  the  year  1826,  after  the  Moderator  had  made  his 
opening  prayer,  the  commissioners  presented  their  commissions  to  the 
clerks,  who  read  them  publicly,  and  then  enrolled  them.  And,  until  such 
reading  and  enrollment,  the  commissioners  had  no  right  to  sit,  speak,  or 
vote,  as  members  of  the  Assembly.  In  that  year,  an  amendment  to  the 
constitution  was  originated,  which  afterwai'ds  received  the  sanction  of  the 
Presbyteries,  by  which  the  commissions,  instead  of  being  publicly  read, 
were  to  be  examined  merely,  and  certain  standing  rules  were  adopted, 
regulating  the  manner  and  process  of  this  examination.  They  are  in  these 
words. 

"  I.  Immediately  after  each  Assembly  is  constituted  with  prayer,  the 
Moderator  shall  appoint  a  Committee  of  Commissions. 

"  II.  The  commissions  shall  then  be  called  for  and  delivered  to  the 
Committee  of  Commissions,  and  the  person  delivering  each,  shall  state 
whether  the  principal  or  alternate  is  present. 

"  III.  After  the  delivery  of  the  commissions,  the  Assembly  shall 
have  a  recess  until  such  an  hour  in  the  afternoon,  as  will  afford  sufficient 
time  to  the  committee  to  examine  the  commissions. 

"  IV.  That  the  Committee  of  Comqiissions  shall,  in  the  afternoon,  re- 
port the  names  of  all  whose  commissions  shall  appear  to  be  regular,  and 
constitutional,  and  the  persons  whose  names  shall  be  thus  reported,  shall 
immediately  take  their  seats  and  proceed  to  business. 

"  V.  The  first  act  of  the  Assembly,  when  thus  ready  for  business, 
shall  be  the  appointment  of  a  Committee  of  Elections,  whose  duty  it 
shall  be  to  examine  all  informal  and  unconstitutional  commissions,  and 
report  on  the  same  as  soon  as  practicable." 

Subsequently  the  Stated  and  Permanent  clerks  were  appointed  to  be  a 
standing  Committee  of  Commissions  under  the  foregoing  rules.  And  the 
commissioners  were  directed  to  present  their  commissions  to  this  com- 
mittee, before  the  commencement  of  the  session  in  the  morning,  and  the 
committee  were  thus  enabled  to  make  up  their  report  for  the  morning 
session. 

I  will  now  read  to  you  the  only  constitutional  provision  which  bears 


144 


PRESBYTERIAN  CHURCH  CASE. 


upon  this  subject,  and  then  we  shall  be  prepared  to  measure  the  conduct 
of  our  adversaries  by  these  standards. 

"  No  commissioner  shall  have  a  right  to  deliberate  or  vote  in  this  As- 
sembly, until  his  name  shall  have  been  enrolled  by  the  clerk;  and  his 
commission  examined  and  filed  among  the  papers  of  the  Assembly." 
Form  of  Governvient,  Chap.  xii.  Sect.  7. 

Now  it  appears  that  the  commissioners,  from  the  four  Synods,  present- 
ed their  commissions  to  the  Committee  of  Commissions,  who  had  the 
power,  by  the  4th  of  the  above  rules,  to  reject  them,  if  they  did  not  deem 
them  constitutional.  They,  though  by  no  means  bound  by  the  proceed- 
ings of  1S37,  except  as  a  precedent,  it  being  the  opinion  of  the  highest 
tribunals  of  the  Church  on  the  constitutionality  of  these  commissions,  re- 
ject them  as  unconstitutional.  Notwithstanding  they  were  at  liberty  to 
decide  otherwise,  they  gave  this  judgment,  and  being  a  competent  tribu- 
nal, their  decision  could  only  be  reversed  by  the  General  Assembly,  ac- 
cording to  a  system  provided  by  these  rules.  The  General  Assembly 
confides  this  review  to  a  Committee  of  ElectionSj  and  it  is  the  first  busi- 
ness of  the  Assembly  to  appoint  this  committee. 

Now  you  will  observe  that  the  Committee  of  Commissions  are  only 
bound  to  put  the  names  of  such,  as  in  their  judgment,  have  regular  and 
constitutional  commissions  on  the  roll,  the  others  they  simply  reject,  and 
they  must  be  brought  before  the  house,  like  other  business,  by  the  motion 
of  some  member,  and  the  Moderator  will  refer  the  same  to  the  Committee 
of  Elections,  as  soon  as  that  committee  is  appointed.  We  shall  show  you 
that  the  Committee  of  Commissions  advised  them  thus  to  apply  to  the 
house.  A  practice  has  sprung  up  of  reporting  irregular  commissions  in  a 
separate  roll,  and  thus  to  bring  them  to  the  notice  of  the  house,  which  re- 
fers them  to  the  Committee  of  Elections,  but  this  you  will  observe  is  no 
part  of  these  rules,  and  is  a  mere  practice  of  convenience  adopted  by  the 
clerks.  We  shall  prove  to  you  that  the  clerks  debated  between  them- 
selves, the  point  whether  these  rejected  commissioners  ought  to  be  pre- 
sented to  the  house  by  them,  or  whether  they  should  be  presented  by 
some  member.  The  latter  opinion,  which  is  a  strict  adherence  to  the  rule, 
prevailed.  Now  here  let  us  pause  and  inquire  whether  these  clerks  have 
committed  any  breach  of  duty.  To  them  is  referred,  by  .the  standing 
rules  of  the  house,  the  question  of  the  constitutionality  of  all  commissions 
which  are  presented  to  them.  They  make  a  weak  or  erroneous  judgment, 
but  that  is  no  crime!  Were  they  influenced  or  afiected  by  the  disowning 
acts  of  1S37?  It  is  most  likely  that  they  were:  is  that  a  crime?  That 
those  disowning  acts  deprived  them  of  the  exercise  of  their  judgment  we 
deny,  but  we  would  have  considered  it  the  height  of  arrogance  had  those 
officers  disregarded  the  opinion  of  the  highest  tribunal  in  the  Church;  it 
was  but  a  decent  respect  to  the  majority  of  that  body,  to  submit  the  cor- 
rection of  their  errors,  if  there  were  errors,  to  the  judgment  of  the  house. 
On  this  act  of  the  clerks  our  adversaries  base  the  right  to  remove  them, 
which,  they  sa}?-,  they  subsequently  exercised.  The  right  to  remove  the 
Moderator,  they  attempt  to  deduce  also  from  his  misconduct  (as  they  call 
it)  in  his  treatment  of  Patton,  Mason,  and  Squier.  Now  what  is  the  real 
account  of  this  matter,  both  as  the  relators  have  shown  it  upon  their  testi- 
mony, and  as  we  shall  more  fully  develope  it  in  ours?  And  first,  imme- 
diately after  the  Moderator,  Dr.  Elliott,  had  opened  the  Assembly  with 


MR.  HUBBELL'S  OPENING,  145 

prayer.  Mr.  Patton  rose  and  said  he  had  certain  resolutions  in  his  hand, 
which  he  wished  to  offer.  He  did  not  read  the  resolutions,  and  the  Mo- 
derator was  entirely  ignorant  of  their  contents.  His  decision,  therefore 
cannot  be  ascribed  to  any  opposition  to  their  matter.  He  decided  that 
they  (and  so  would  have  been  his  decision  as  to  any  other  resolution) 
were  out  of  order,  as  the  first  business  was  the  formation  of  the  roll.  The 
propriety  of  this  decision  no  one  in  his  senses  can  doubt.  The  rules 
of  1826,  which  I  have  read  to  you,  as  they  originally  stood,  consider  the 
house  so  absolutely  inane  and  incapable  before  the  roll  is  reported,  that 
they  direct  it  to  be  adjourned  from  the  time  the  commissions  are  com^ 
mitted  to  the  clerks,  until  they  are  ready  to  report.  And  the  Constitution 
itself  provides,  that  no  member  shall  be  allowed  to  deliberate  or  vote  until 
he  is  enrolled.  Until,  therefore,  the  roll  is  reported,  as  no  one  is  entitled 
either  to  deliberate  or  vote,  who  is  there  to  entertain  a  motion?  Mr. 
Patton,  after  committing  this  solecism,  still  persisted  and  thereby  betrayed 
a  remarkable  unacquaintance,  in  himself,  and  the  party  whose  organ  he 
was,  of  the  structure  of  this  body.  He  appealed  from  this  just  decision  : 
to  whom  did  he  appeal.''  The  appeal  must  be  to  some  persons  who  can 
deliberate  and  vote  upon  that  appeal.  But  the  roll  not  being  reported, 
there  was  none  entitled  to  deliberate  and  vote;  in  other  words,  there  was 
no  house  to  which  the  appeal  could  be  made.  The  Moderator,  properly, 
therefore,  declared  that  appeal  out  of  order.  Mr.  Patton  took  his  seat, 
and  acquiesced  in  the  decision.  The  roll  was  then  reported,  and  there- 
upon, the  Moderator  made  a  proclamation  or  call  for  any  commissions 
which  had  not  been  presented  to  the  clerks,  and  stated  if  there  were  any 
such,  now  was  the  time  to  present  them.  A  usual  formula,  and  a  remnant 
of  the  original  practice  under  the  rules  of  1S26. 

Rule  H. — "  The  commissions  shall  then  be  called  for,  and  delivered  to 
the  Committee  of  Commissions." 

This  practice  was  subsequently  modified,  as  you  have  already  learned, 
by  delivering  the  commissions  to  the  clerks,  composing  the  Committee 
of  Commissions,  before  the  meeting  of  the  General  Assembly:  but  it  was 
deemed  judicious  to  retain  the  old  practice  of  calling  for  commissions  at 
the  opening  of  the  Assembly,  lest  some,  from  inadvertence,  misapprehen- 
sion, or  want  of  opportunity,  should  not  have  presented  their  commissions 
to  the  clerks.  Although  the  clerks  have  read  the  roll,  yet  the  roll  is  not 
completed,  and  the  house  ascertained,  until  this  proclamation  has  been 
made,  and  a  reasonable  opportunity  given  to  assent  to  it.  The  essential 
nature  of  this  proclamation  to  the  well  ordering  of  the  house,  even  in  the 
opinion  of  our  adversaries,  is  made  manifest,  by  the  fact,  that  the  first 
act,  performed  by  the  New-school  Moderator,  after  he  was  installed,  was 
to  make  this  very  proclamation.  While  this  call,  by  Dr.  Elliott,  was 
pending,  and  one  commissioner,  at  least,  was  coming  forward  to  avail 
himself  of  it,  Dr.  Mason  rose,  and  disregarding  the  business  which  already 
possessed  the  house,  for  he  did  not  pretend  that  his  application  was  re- 
sponsive to  that  call;  disregarding  that  standing  rule  of  order,  which  pro- 
vides that  the  very  first  business  of  the  house,  shall  be  the  appointment 
of  a  Committee  of  Elections;  he  moves  that  the  names  of  certain  com- 
m.issioners,  whose  commissions  had  been  presented  to  the  clerks,  and 
rejected  by  them,  should  be  added  to  the  roll.  Notwithstanding  the  ma- 
nifest disorderly  nature  «f  this  motion,  the  Moderator,  Dr.  Elliott,  acted 

19 


146 


PRESBYTERIAN  CHURCH  CASE. 


with  great  moderation  and  composure.  Instead  of  absolutely,  and  at 
once,  declaring  the  motion  out  of  order,  as  he  had  reason  to  suspect,  that 
the  commissions  so  offered,  were  from  the  disowned  Synods,  he  inquired 
and  ascertained  that  fact,  and  then  carefully  qualifies  his  rejection  of  the 
motion,  by  saying,  it  is  out  order  at  this  time.  That  the  rejection  of  the 
motion  might  not  be  construed  into  a  rejection  of  the  men,  he  carefully 
qualifies  it,  so  as  to  show  that  the  order  only  of  the  motion  was  objection- 
able, and  tliat  the  time  would  come  when  it  would  be  receivable.  Here 
let  me  interrupt  the  flow  of  events,  to  state  that  it  is  manifest,  that  it  was 
not  the  intention  of  the  officers  to  exclude  these  commissioners  from  ac- 
cess to  the  decision  of  the  house,, in  this  case.  The  clerks  told  them  to 
apply  to  the  Assembly,  The  Moderator  told  Dr.  Mason  that  a  time 
would  come  for  their  presentation.  And  there  cannot  be  a  reasonable 
doubt,  that  if  presented  to  the  house,  after  the  appointment  of  a  Commits 
tee  of  Elections,  they  would  have  them  referred  to  that  committee,  and  ; 
such  of  them  as  could  have  demonstrated  that  theycame  from  pure  Pres- 
byteries, would  have  been  admitted  to  their  seats;  there  would  have  been 
no  pretence  to  e'xclude  them.  Even  the  disowning  acts  invite  such  to 
come  to  the  Assembly  of  183S,  and  take  their  seats.  As  to  those  whose 
primary  constituency,  were  Congregational  churches,  they  would  have 
had  their  case  decided  on  by  a  majority  of  the  house,  entirely  uncontrol- 
led and  unshackled  by  the  proceedings  of  1837;  and  if  the  conjectures  of 
Mr.  Pheips,  ohe  of  the  Relators'  witnesses,  which  you  have  heard  given  in 
evidence,  be  right,  then  the  majority  would  have  admitted  them.  For  he 
assures  us,  that  many  Oid-school  members  would  have  voted  for  their 
admission,  so  as  to  make  a  majority  in  their  favour. 

But  to  return  to  Dr.  Mason,  not  abashed  by  the  impropriety  of  his 
motion,  he  appealed,  and  the  Moderator  refused  to  put  that  appeal. 
Here  is  the  very  head  and  front  of  our  ofiending.  The  motion  may 
have  been  wrong ;  at  all  events  the  Moderator  was  constitutionally  au- 
thorised to  decide  it  to  be  wrong,  but  the  refusal  to  put  the  appeal,  was, 
say  they,  an  usurpation,  an  act  of  tyranny,  and  breach  of  privilege  !  That 
an  appeal  may  be  out  of  order  will  not  be  denied.  For  instance,  an  ap- 
peal must  be  made  imQiediately  upon  the  decision  complained  of;  if 
other  business  is  allowed  to  intervene,  the  right  of  appeal  is  gone,  and  he 
who  should  attempt  to  make  an  appeal  under  such  circumstances,  would 
have  it  rejected  by  the  Moderator.  If  there  be  one  such  case,  there  may 
be  others,  and  no  stronger  case  than  the  one  I  am  discussing,  could  be 
suggested.  For  by  putting  the  appeal,  in  order  to  avoid  the  violation  of 
Dr.  Mason's  privilege,  he  would  have  violated  the  privilege  of  others. 
The  roll  was  in  the  process  of  being  completed,  a  call  had  been  made  for 
persons  who  were  present  with  commissions  to  come  forward  and  qualify 
themselves  for  voting,  by  being  enrolled.  The  physical  performance  of 
this  act  required  some  lapse  of  time.  We  are  informed  by  the  evidence, 
that  there  was  one  commissioner,  Joshua  Moore,  who  was  in  the  act  of 
availing  himself  of  the  Moderator's  invitation,  when  Dr.  Mason  rose. 
Had  there  been  fifty  in  that  predicament,  some  time  must  have  elapsed 
before  the  last,  in  the  succession  of  fifty,  (for  the  enrolling  must  be  done 
successively,)  could  have  been  qualified  to  vote.  Might  not  such  fiftieth 
commissioner,  or  even  Joshua  Moore,  if  he  stood  alone,  have  said,  "  sub- 
mit no  question  to  the  house  until  I  am  qualified  to  participate  in  the 


MR.  HUBBELL'S  OPENING.  X47 

same.  The  roll  is  not  yet  complete."  And  such  was  the  principle  of 
the  rejection  of  the  appeal,  the  roll  was  not  yet  complete,  and  the  house 
had  not  yet  been  ascertained.  The  clerks  had  reported  such  as  had  pre- 
sented their  commissions,  and  whom  they  deemed  entitled  to  seats;  the 
Moderator  was  about  adding  to  them  by  his  proclamation,  such  as  had 
unquestioned  commissions,  but  had  not  availed  themselves  of  the  pre- 
vious opportunity. 

But  suppose  this  honest,  well-meant  decision  was  erroneous,  and  a 
breach  of  privilege,  what  flowed  from  it?  We  understand  that  Dr.  Ma- 
^on  acquiesced  in  it;  he  sat  down  without  complaint,  and  another  applica- 
tion to  the  Moderator  from  one  of  their  own  party  (Squier)  followed. 
This  question  of  the  breach  of  privilege  is  entirely  an  afterthought.  The 
subsequent  proceedings  of  Mr.  Cleaveland  are  so  plainly  opposed  to  nu- 
merous rules  of  the  house,  and  the  principles  which  govern  every  delibe- 
rative body,  that  our  adversaries  are  constrained  to  seek  some  extraordi- 
nary justification  for  this  extraordinary  conduct,  and  they  think,  they 
have  found  it  in  this  supposed  breach  of  Dr.  Mason's  privilege.  But  I 
will  presently  show  you,  that  none  of  the  ulterior  proceedings  had  any 
connection  with  this  supposed  breach  of  privilege.  But  there  is,  how- 
ever, an  intermediation  between  Dr.  Mason  and  Mr.  Cleaveland,  which 
must  first  be  explained.  Mr.  Squier  rose  and  demanded  his  seat  in  the 
house.  The  Moderator  had  now  official  notice,  that  the  four  Synods  had 
been  excluded  from  the  roll,  for  the  roll  had  been  read.  He  therefore 
inquired  if  he,  Mr.  Squier,  belonged  to  those  Synods,  and  having  ascer- 
tained that  he  did,  told  him  that  he  did  not  know  him,  i.  e.  no  one  had  a 
right  to  address  that  house  but  enrolled  members,  and  that  its  officers 
could  not  recognise  any  others.  Tliis  reason,  you  must  be  satisfied  by 
this  time,  was  conclusive,  and  so  Mr.  Squier  thought,  for  he  did  not  at- 
tempt to  appeal.  Mr.  Squier  should,  upon  every  principle  of  order,  have 
asked  some  enrolled  member  to  present  his  application. 

Up  to  this.time  gentlemen,  it  is  manifest,  tiiat  the  General  Assembly  of 
1S38,  had  rejected  no  applicant  for  the  rights  of  membership.  If,  assum- 
ing the  unconstitutionality  of  the  disowning  acts,  there  had  been  fault  or 
misconduct  in  attempting  to  enforce  them,  that  fatilt  or  misconduct  was 
entirely  in  the  clerks.  The  Moderator  had  certainly  done  nothing  but 
enforce  the  rules  of  order.  But,  supposing  for  the  sake  of  the  argu- 
ment, that  he  had  by  his  conduct  been  endeavouring  to  carry  out  these 
acts,  no  sanction  had  been  given  by  the  house  to  this  conduct,  or  the  con- 
duct of  the  clerks. 

The  New-school  party  had  convened  in  caucus  before  the  meeting  of 
the  General  Assembly,  and  had  resolved, 

"That  should  a  portion  of  the  commissioners  to  the  next  General  As- 
sembly attempt  to  organize  the  Assembly,  without  admitting  to  their  seats 
commissioners  from  all  the  presbyteries  recognised  in  the  organization  of 
the  General  Assembly  of  1837,  it  will  then  be  the  duty  of  the  commis- 
sioners present,  to  organize  the  General  Assembly  of  1838,  in  all  respects 
according  to  the  Constitution,  and  to  transact  all  other  necessary  business 
consequent  upon  such  organization." 

Now  thi5  furnishes  a  key  to  their  whole  proceedings.  "Should  a  por- 
tion of  the  commissioners  to  the  next  General  Assembly  attempt  to  or- 
ganize," &c. — a  portion,  no  matter  whether  that  portion  were  great  or 


148  PRESBYTERIAN  CHURCH  CASE. 

small,  the  majority  or  the  minority — "It  will  then  be,  the  duty  of  the 
commissioners  present  to  organize  in  all  respects  according  to  the  consti- 
tution," says  the  resolution.  That  is  the  Commissioners,  other  than  those 
included  in  the  portion,  will  organize  admitting  the  commissioners  at- 
tempted to  be  excluded  by  the  poriion.  In  other  words,  should  the  por- 
tion be  the  majority,  the  minority  will  organize  according  to  their  no- 
tions of  the  constitution,  and  claim  to  be  the  true  house.  This  was  the 
design  of  our  adversaries ;  and  when  the  clerks  rejected  the  commission- 
ers from  the  four  Synods,  the  attempts  of  Messrs.  Patton,  Mason,  and 
Squier  were  made  for  the  purpose  of  forcing  the  house,  or  the  portion, 
or  majority  of  the  house  into,  a  concurrence  in  that  rejection,  which  would 
establish  the  postulate  this  resolution  and  plan  of  action  had  assumed. 
But  owing  to  the  remarkable  unacquaintance  of  these  gentlemen,  with  the 
rules  of  the  house,  they  made  their  attempts  at  im.proper  periods  of  time, 
and  therefore  were  prevented  from  obtaining  the  vote  of  the  house  on  these 
rejections.  They,  however,  dashed  on  in  the  career  which  they  had  pre- 
scribed for  themselves.  Mr.  Cleaveland  rose  and  read  a  paper  which  he 
had  prepared,  in  accordance  with  the  resolution  of  the  caucus,  which  pa- 
per stated  "that  as  the  commissioners  to  the  General  Assembly  of  1838, 
from  a  large  number  of  Presbyteries  had  been  refused  their  seats ;  and  as 
we  had  been  advised  by  counsel  learned  in  the  lavv,  that  a  constitutional 
organization  of  the  Assembly  must  be  secured  at  this  time  and  in  this 
place,  he  trusted  it  would  not  be  considered  as  an  act  of  discourtesy,  but 
merely  as  a  matter  of  necessity,  if  we  proceed  to  organize  the  General  As- 
sembly for  1838,  in  the  fewest  words,  the  shortest  time,  and  with  the  least 
interruption  practicable."  He  then  moved  that  Dr.  Beman  be  the  Mo- 
derator to  preside  till  a  new  Moderator  be  chosen.  Now  you  will  ob- 
serve, that  not  a  word  is  said  about  a  breach  of  privilege  by  the  Modera- 
tor, in  refusing  to  put  Dr.  Mason's  appeal  to  the  house,  not  a  word  about 
removing  him  for  misconduct,  but  Mr.  Cleaveland's  motion  is  founded 
altogether,  on  the  assumed  fact,  that  certain  commissioners  had  been  re- 
fused their  seats.  It  is  true  that  the  clerks  had  refused  to  enrol  them,  but 
neither  the  house,  nor  any  portion  of  the  commissioners,  had  sanctioned 
that  act.  The  exigency,  contemplated  in  the  caucus  resolution,  had  not 
therefore  arisen.  Mr.  Cleaveland's  motion  was,  in  consequence,  based 
solely  upon  the  act  of  the  clerks,  which  could  only  be  properly  reviewed 
by  an  appeal  to  the  house,  but  which  he  undertook  to  review  in  another 
method,  that  is  by  considering  them  and  the  Moderator  as  nonentities, 
and  by  organizing  the  Assembly  anew  from  its  original  elements.  His 
motion,  to  put  Dr.  Beman  in  the  chair,  was  received  with  loud  shouts  of 
"Aye!"  from  their  partizans.  They  appointed  clerks,  and  a  permanent 
Moderator,  in  the  same  way,  and  adjourned  to  the  First  Church,  were 
they  sat,  assuming  to  be  the  General  Assembly,  and  elected  the  Relators 
as  trustees.  When  they  had  time  to  cool,  they  saw  that  they  had  not 
accomplished  their  design;  that  upon  their  own  principles,  no  portion  of 
the  house  had  rejected  the  commissioners  in  question;  that  they  had  pun- 
ished the  majority)  for  the  fault  of  the  clerks,  without  giving  that  majori- 
ty an  opportunity  of  reviewing  and  correcting  the  decision  of  the  clerks. 
They  would,  therefore,  have  been  put  to  that  shame,  which  is  always  the 
punishment  of  unsuccessful  rashness,  had  it  not  been  for  one  bright  thought! 
Before  I  introduce  this  to  your  acquaintance,  let  me  call  your  attention 


MR.  HUBBELL'S  OPENING.  J  49 

again  to  the  caucus  resolution.  They  resolved  in  effect,  that  should  a 
portion  of  the  commissioners  attempt  to  organize,  omitting  the  members 
from  the  four  Synods,  that  they,  our  adversaries,  would  organize,  admit- 
ting them.  Now,  it  is  manifest,  that  if  this  portion  were  the  majority, 
and  should  vote  upon  the  questions  put  by  these  self-styled  constitutional 
organizers,  they  would  vote  them  down,  and  thus  defeat  their  intended 
constitutional  organization.  It  is,  therefore,  necessarily  involved  in  this 
resolution,  that  these  sticklers  for  our  constitution,  would  treat  the  inter- 
ference of  ihe portion,  that  is  the  majority,  by  vote  or  otherwise,  in  their 
attempt  at  constitutional  organization,  with  entire  inattention  and  disre- 
gard. Well  might  one  of  the  members  of  this  caucus  (as  you  have  it  in 
proof)  exclaim  upon  the  adoption  of  this  resolution,  "we  have  passed  the 
Rubicon." 

We  asked  the  witnesses  of  this  party,  what  they  would  have  done  had 
the  Old-school  majority,  (a  clear,  confessed,  undoubted  majority)  voted 
in  the  negative  on  Mr.  Cleaveland's  motion?  The  Relators'  counsel 
instantly  objected  to  the  question,  and  the  Court  sustained  the  objection. 
We  have  not,  therefore,  the  benefit  of  an  answer,  but  if  you  examine  the 
caucus  resolution  on  which  Mr.  Cleaveland's  motion  was  based,  you  will 
be  convinced  that  they  would  not  have  regarded  any  negative  vote  from 
the  Old-school  party.  In  other  words,  the  motion  was  addressed  to  the 
New-school  party,  and  as  they  were  pledged  to  vote  affirmatively,  they 
could  easily  be  distinguished. 

But  the  Old-school  party  put  them  to  no  such  strait;  they  sat  indig- 
nantly silent,  or  only  opened  their  mouths  to  cry  order.  And  it  is  upon 
this  conduct  that  the  bright  thought  is  formed  which  has  given  our  adver- 
saries a  topic  for  their  sophistry.  The  30th  of  the  general  rules  for  judi- 
catories provides: 

"  Silent  members,  unless  excused  from  voting,  must  be  considered  as 
acquiescing  with  the  majority." 

The  position  of  our  adversaries  now  is,  that  the  Moderator  committed 
a  breach  of  privilege,  by  refusing  to  put  Dr.  Mason's  appeal,  he  thereby 
forfeited  his  office,  and  any  member  had  a  right  to  move  the  house  for  his 
displacement.  That  Mr.  Cleaveland's  motion  was  such  in  substance,  and 
as  the  silent  members  are  to  be  accounted  to  have  voted  affirmatively,  that 
motion  was  carried  by  a  unanimous  vote  of  the  house.  They  make  no 
complaint  of  the  Old-school  party  in  the  house,  but  the  offence  was 
entirely  the  Moderator's,  committed  against  the  whole  house,  and  the 
whole  house  joined  in  punishing  him. 

These  new  positions  are  infinitely  more  infirm,  when  duly  considered, 
than  those  which  preceded  them.  They  are,  moreover,  censurable  as  dis- 
ingenuous. It  is  stealing  a  march  upon,  and  out-generaling  us;  a  species 
of  strategy,  licensable  in  war,  but  not  to  be  practised  by  the  grave  minis- 
ters of  a  Christian  Church. 

It  would  exhaust  your  patience,  to  enumerate  the  fatal  objections  to 
these  positions.     Let  a  few  suffice. 

The  intendment  that  he,  who  sits  silent,  votes  in  the  affirmative,  can 
arise  only  when  the  question  is  properly  and  legally  proposed.  No  man 
is  bound  to  treat  a  disorderly  motion  otherwise  than  as  a  disorder. 

Now,  here  was  a  motion  proposed  confessedly  under  the  most  extraor- 


J 50  PRESBYTERIAN  CHURCH  CASE. 

dinary  circumstances,  and  he  who  relies  upon  its  efficacy,  must  prove  it 
to  have  been  strictly  legal. 

The  first  objection  which  I  shall  take  to  it  is,  that  it  was  in  direct  oppo- 
sition to  the  stated  business  of  the  house.  The  standing  rules  of  1826, 
providing,  that  the  first  business  which  the  house  shall  transact,  after  the 
report  on  the  roll,  shall  be  the  appointment  of  a  Committee  of  Elections, 
to  whom  shall  be  referred  the  commissions  rejected  by  the  clerks,  or  Com- 
mittee of  Commissions.  A  standing  rule,  intimately  connected  with  the 
privileges  of  the  members;  for  while  the  appointment  of  this  committee 
is  suspended,  members  entitled  to  seats  throilgh  the  action  of  that  com- 
mittee, are  deprived  of  their  privileges  as  members. 

To  this  a  feeble  answer  is  returned,  that  the  refusal  of  Dr.  Mason's 
apppeal  was  a  breach  of  privilege,  and  questions  of  privilege  are  always 
in  order.  I  trust  I  have  demonstrated,  that  the  rejection  of  that  appeal 
was  rightful.  But  let  us  assume,  for  the  argument's  sake,  that  it.  was  a 
breach  of  privilege.  Did  it  justify  Mr.  Clcaveland's  proceeding?  There 
was  no  connexion  between  the  two.  Dr.  Mason  had  a  right,  and  per- 
haps another  for  him,  to  bring  his  question  of  privilege,  immediately 
and  distinctly,  before  the  house,  and  obtain  his  redress,  even  by  the  ex- 
pulsion of  the  offending  officer.  If  so  brought  forward,  it  would  have 
been  intelligible,  and  all  would  have  voted  advisedly;  but  it  did  not  en- 
title him,  or  any  other  for  him,  to  bring  a  foreign  matter,  out  of  its  order, 
before  the  house.  Did  Mr.  Cleaveland  bring  this  question  of  privilege 
before  the  house  ?  What  was  the  grievance  that  he  alleged  to  be  the 
cause  and  justification  of  his  truly  extraordinary  motion?  We  have  his 
very  words,  "  That  as  the  Commissioners  from  a  large  number  of  Pres- 
byteries had  been  refused  their  seats,"  &c.  On  this  account,  and  for 
this  reason,  and  to  redress  this  injury,  he  made  his  motion.  Was  there 
the  slightest  intimation  from  which  any  member  of  that  house,  who  had 
seen  Dr.  Mason  take  his  seat  quietly ;  who  had  seen  Mr.  Squier,  a  gen- 
tleman in  the  same  connexion  of  party  and  counsels,  intervene  and  intro- 
duce another  matter — I  say,  was  there  any  intimation  to  such  member  in 
Mr.  Clcaveland's  motion,  written  and  prepared  with  a  formal  preface  be- 
fore he  had  come  to  the  house,  and  of  course  before  Dr.  Mason's  appeal 
had  been  rejected,  and  before  it  could  be  known  that  it  would  be  reject- 
ed, except  by  the  spirit  of  prophecy,  that  this  motion  was  intended  as  a 
measure  of  penal  visitation  for  the  rejection  of  that  appeal? 

The  Form  of  Government  prescribes,  "That  the  Moderator  is  to  pro- 
pose to  the  judicatory  every  subject  of  deliberation  that  comes  before 
them."  "  He  shall,  at  a  proper  season,  when  the  deliberations  are  ended, 
put  the  question,  and  call  the  votes."  "  In  all  questions,  he  shall  give  a 
concise  and  clear  state  of  the  object  of  the  vote;  and  the  vote  being  taken, 
shall  then  declare  how  the  question  is  decided."  Chap.  xix.  Sect.  2. 
Now,  Mr.  Clcaveland's  proceedings  were  a  violation  of  every  one  of  these 
constitutional  provisions.  An  individual  rises  in  the  rear  of  the  members' 
seats,  makes  a  motion  which  he  does  not  address  to  the  Moderator,  as- 
sumes the  office  of  Moderator,  and  puts  the  question  himself,  the  real  in- 
cumbent of  the  office  of  Moderator  still  holding  the  seat  of  office,  and  up 
to  that  moment  acknowledged  by  all  parties  to  be  the  real  Moderator. 
Nay,  the  first  part  of  Mr.  Clcaveland's  preface  being  addressed  to  him,  for 


MR.  HUBBELL'S  OPENING,  251 

he  commenced  by  saying,  "  Mr.  Moderator,"  but  afterwards  turned  from 
him,  and  addressed  himself  to  the  audience.  This  individual,  under  these 
circumstances,  and  under  calls  to  order  from  the  Moderator,  proposes  a 
question  himself,  and  calls  for  votes,  and  declares  the  result.  The  whole 
of  this  proceeding,  thus  suddenly  and  unexpectedly  started,  is  completed 
in  the  lapse  of  a  few  seconds,  and  yet  it  is  seriously  contended,  that  the 
majority,  whom  it  is  conceded  were  opposed  to  the  measure,  by  this 
silence,  legally  concurred  in  the  measure;  and  it  is  to  be  accounted  as 
passed  by  their  votes.  The  party  who  resorted  to  this  proceeding  were 
prepared  and  drilled;  they  not  only  understood  what  was  to  be  done,  but 
who  was  to  do  it.  To  their  adversaries,  it  was  all  surprise;  and  as  one 
of  the  Relators'  witnesses  has  expressed  it,  they  sat  in  amazement.  Can 
such  silence  be  acquiescence?  But  if  they  did  understand  the  matter, 
were  they  bound  to  vote  upon  a  motion  not  put  by  the  constitutional  or- 
gan to  the  house  ?  Our  adversary's  answer  to  this  is,  that  it  was  a  ques- 
tion for  his  own  removal,  and  therefore  it  would  be  improper  to  require 
him  to  put  it  to  the  house.  Should  we  concede  this  position,  still  Mr. 
•Cleaveland  was  not  the  proper  person  to  put  the  question:  the  practice  of 
this  body,  and  the  established  parliamentary  usage  has  settled,  that  should 
any  question  arise  touching  the  Moderator,  Speaker,  or  Chairman,  or 
whatever  else  may  be  the  designation  of  the  presiding  officer,  the  motion 
must  be  put  to  the  house  by  the  clerk,  and  no  man  is  bound  to  notice  a 
motion  put  otherwise.  But  to  this  our  adversaries  answer,  that  the  clerks 
were  as  deep  in  fault  as  the  Moderator,  and  would  not  have  put  the  mo- 
tion. Were  they  asked  to  do  it?  It  does  not  appear  that  they  would 
have  refused:  a  sense  of  duty  often,  for  the  honour  of  our  race,  overcomes 
individual  predilections.  I  am  speaking,  now,  the  language  of  our  adver- 
saries, and  assuming  that  right  and  duty  is  on  their  side.  If  Mr.  Cleave- 
land had  stated  his  motion,  and  requested  the  clerks  to  propose  it  to  the 
house,  and  they  had  refused,  the  house  would  then  have  fully  understood 
its  purpose,  and  been  prepared  to  vote  upon  it,  when,  as  a  dernier  resort, 
Mr.  Cleaveland  proposed  it  himself.  As  regards  the  Moderator,  they 
assert  that  the  question  pertained  to  his  own  removal,  and  that  it  would 
have  been  absurd  to  require  him  to  put  it  to  the  house.  Without  acqui- 
escing in  the  logic  of  this  position,  we  say,  that  this  reason,  good  or  bad,r 
did  not  apply  to  the  clerks,  whose  removal  the  question  did  not  agitate. 

But  this  question  was  not  only  proposed  unconstitutionally,  by  an 
improper  person,  but  the  subject  matter  was  improper;  it  being  to  call 
Dr.  Beman  to  the  office  of  Moderator;  for  a  rule  of  order  provides — "  If 
a  quorum  be  assembled  at  the  hour  appointed,  and  the  Moderator  be 
absent,  the  last  Moderator  present  shall  be  requested  to  take  his  place 
without  delay." 

Now  it  is  in  proof,  that  there  were  present  at  the  time  of  Mr.  Cleave- 
land's  motion,  three  gentlemen  who  had  held  the  office  subsequent  to  Dr. 
Beman.  This  gentleman  had  already  once  felt  the  inflexibility  of  this- 
rule.     I  cite  from  the  Minutes  of  1835. 

"  A  motion  was  made  to  reconsider  the  vote  by  which  Dr.  Beman  was 
called  to  the  chair,  on  the  ground,  that  many  persons  voted  in  the  appre- 
hension that  Dr.  McDowell,  the  Moderator  immediately  preceding,  was 
not  in  the  house."  Dr.  Ely,  the  stated  Clerk,  put  the  question,  "  All 
who  are  in  favour  of  sustaining  the  resolution,  by  which  Dr.  Beman  was 


J  52  PRESBYTERIAN  CHURCH  CASE. 

called  to  the  chair,  will  signify  it  by  saying,  Aye."     The  motion  was 
lost,  and  Dr.  McDowell,  the  last  Moderator  present,  took  the  chair. 

The  answer  that  our  adversaries  make  to  this  objection  is,  that  this  rule 
does  not  apply  to-  extraordinary  cases,  like  that  we  are  discussing,  but 
only  to  the  ordinary  case  of  the  absence  of  the  Moderator  of  the  last  year. 
The  word  is  absent,  but  if  the  Moderator  be  physically  present,  but  disa- 
bled by  misconduct,  he  is  legally  absent.  If  the  occasion  was  extraordi- 
nary, why  make  it  more  so,  by  extraordinary  expedients?  The  constitu- 
tion and  rules  supply  a  method  of  conduct  for  almost  every  possible  exi- 
gency. If  Dr.  Elliott  had  vacated  his  chair  by  his  misconduct,  every  one 
would  have  understood  a  call  upon  the  last  preceding  Moderator  present 
to  take  the  chair.  No  one  would  have  mistaken  the  operation  for  a  revo- 
lution, or  secession;  for  its  strict  conformity  to  rules,  would  have  argued 
its  being  a  submission  to  the  laws. 

And  now,  gentlemen,  you  will  observe  the  deceptive  nature  of  this 
whole  process,  to  those  who  were  not  admitted  to  the  secret.  A  resolu- 
tion is  passed  at  a  caucus,  and  promulgated,  that  our  adversaries  were 
about  to„  organize  an  opposition  Assembly,  which  they  would  claim  to  be 
the  true  Assembly.  Mr.  Cleaveland  rises,  and  reads  a  paper,  purporting 
to  emanate  from  a  party.  "  TVe,"  says  he,  "  have  been  advised  b}^  coun- 
sel learned  in  the  law."  Who  had  been  advised  by  counsel?  Not  the 
Old-school,  but  the  New-school?  He  then  further  states,  or  reads,  that  the 
same  "  we,"  that  had  been  so  advised  by  counsel  learned  in  the  law,  that 
is,  the  New-school  party,  would  proceed  to  organize  the  Assembly,  with 
the  least  "  interruption"  possible.  Interruption,  to  whom?  Certainly,  to 
the  Old-school  party;  that  port ioji  of  the  commissioners  spoken  of  in  the 
caucus  resolution.  If  Mr.  Cleaveland  meant,  as  they  now  assert,  to 
address  this  resolution  to  the  whole  house,  (I  have  given  you  my  reasons 
already  for  disbelieving  this,)  he  certainly  did  it  in  a  very  deceptive  way. 
Will  any  man  have  the  audacity  to  assert  that  the  Old-school  party  would 
have  remained  silent,  had  they  been  fairly  informed  of  the  use  that  would 
have  been  made  of  their  silence.  The  effect  given  to  silence,  by  the  rulea 
of  the  General  Assembly,  was  only  intended  for  ordinary  occasions. 
When  a  question  is  put  by  the  usual  officer,  in  the  usual  form,  there  is  but 
one  alternative,  Aye,  or  No — and  silence  may  be  reasonably  construed 
into  acquiescence.  But  when  the  presiding  officer,  and  a  member  come 
into  collision,  and  the  one  calls  for  the  ayes  and  noes,  and  the  other  cries 
order,  is  it  not  more  reasonable,  to  construe  silence  into  obedience  to 
the  cry  of  order,  which  merely  requires  silence,  than  into  an  affirma- 
tive vote?  Aliud  est  dicere  aliud  tacere,  is  the  dictate  of  common  sense. 
He  that,  under  the  extraordinary  circumstances  of  this  sudden,  rapid, 
indirect,"  ambiguous  motion,  would  take  advantage  of  our  silence,  must 
show  that  we  were  not  surprised,  that  we  were  not  deceived,  that  we 
were  not  mistaken,  and  that  our  silence  was  a  deliberate  concurrence. 
You  will  not,  nor  will  this  Court,  permit  these  solemn  things  to  be  made 
a  mockery;  nor  these  important  rights  to  turn  upon  a  quibble! 

Another  fact  ought  not  to  be  omitted,  in  examining  into  the  intentions 
of  our  adversaries,  in  making  these  movements.  We  maintain  that  they 
intended  to  organize  another  Assembly,  not  by  our  votes,  but  against  our 
votes,  and  to  contend,  that  theirs  was  the  real  Assembly.  That  the  po 
sition,  now  assumed  by  them,  that  they  organized  by  our  votes,  and  are 


MR.  HUBBELL'S  OPENING.  J53 

the  continuation  of  the  same  Assemhly  which  commenced  its  organiza- 
tion under  Dr.  Elhott,  is  an  after  thought.  Now,  hear  a  further  proof. 
A  written  copy  of  a  resolution  was  handed  to  Dr.  Beman  in  these 
words : 

"  Resolution  of  the  Trustees  of  the  Seventh  Presbyterian  Church, 
adopted  May  7th,  1S3S. 

"  Resolved,  That  the  General  Assembly  of  the  Presbyterian  Church, 
which  is  to  convene  in  Philadelphia  on  the  17th  instant,  and  which  shall 
be  organized  under  the  direction  of  the  Moderator  and  clerks,  officiating 
during  the  meeting  of  the  last  General  Assembly,  shall  have  the  use  of 
'the  Seventh  Presbyterian  Church,  during  their  sessions,  to  the  exclusion 
of  every  Assembly  or  Convention  which  may  be  organized  during  the 
same  period  of  time." 

Upon  the  receipt  of  this  paper  the  pseudo  Assembly  adjourned  to  the 
First  Presbyterian  Church  ;  thereby  distinctly  acknowledging,  that  they 
were  not  the  General  Assembly  which  organized  under  the  Moderator 
and  clerks  of  1837.  Various  other  acts  of  theirs  denote  the  same  fore- 
.  gone  conclusion.  Their  Moderator  did  not  demand  the  chair,  but  re- 
tired to  the  nethermost  part  of  the  building,  and  stood  in  the  aisle,  his 
party  crowding  tumultuously  around  him.  Their  clerks  did  not  de- 
mand the  roll,  nor  take  the  clerks'  seat,  but  performed  their  important 
functions  standing,  and  without  implements  of  writing. 

We  shall  show  you,  that  their  whole  proceeding  was  carried  on  in 
tumult  and  disorder.  That  the  important  motion,  made  by  Mr.  Cleave- 
land,  was  not  reversed,  so  as  to  give  us  an  opportunity  of  voting,  had  we 
desired  it.  We  will  bring  forward  every  commissioner,  within  our 
reach,  who  was  present  on  that  occasion,  and  they  will  tell  you,  that 
such  was  the  noise,  the  clapping  of  hands,  the  hissing,  and  other  disor- 
derly manifestations,  from  the  mixed  crowd,  on  the  floor  of  the  house 
and  in  the  galleries,  that  they  could  not,  and  did  not,  hear. 

I  have  now,  gentlemen,  gone  through  the  case  which  we  shall  exhibit 
to  you.  I  have  stated  what  we  shall  prove,  and  have,  at  the  same  time, 
pointed  out  the  conclusions  which  we  seek  to  maintain  by  that  proof.  Be- 
fore, however,  I  leave  the  subject,  permit  me  to  remark,  that  any  language, 
which  I  have  used,  which  may  savor  of  asperity,  has  been  used  imperson- 
ally. I  respect  the  gentlemen  of  the  party,  against  whom  I  am  called  to 
act  professionally,  both  as  individuals,  and  as  ministers  of  the  Gospel. 
They  will,  however,  permit  me  to  point  to  one  particular  in  which,  I  fear, 
they  have  acted  with  harshness.  Why  is  it,  that  almost  the  first  act  that 
was  done,  under  their  new  organization,  was  the  removal  from  office  of 
the  venerable  patriarch  of  this  Church?  Out  of  eighteen  trustees,  whom 
they  might  have  removed,  why  did  they  attack  iiim  first,  and  make  him 
the  first  defendant  in  a  proceeding,  criminal  in  its  form?  A  reverend 
father,  who  was  named  and  constituted  trustee  by  the  act  of  incorporation 
itself,  and  who  has  been  continued,  for  forty  years,  amidst  all  the  vicissi- 
tudes of  party.  Does  not  this  betray  some  bitterness  of  feeling?  To  the 
fluctuating  faith  of  their  party,  does  not  his  inflexible  example  prove  a 
reproach?  He  has  stood,  for  years,  in  the  consistency  of  his  Doric  sim- 
plicity, a  land-mark,  from  which  miglit  be  measured  the  deflections  of 
erratic  opinion. 

Ours  is,  perhaps,  geutlenien,  the  unpopular  party.  There  may,  perhaps, 
20 


154 


PRESBYTERIAN  CHURCH  CASE. 


be  some  severe  and  uninviting  features  in  our  faith.  It  is,  however,  of 
too  high  and  inflexible  an  origin  to  be  accommodated,  at  will,  to  the  pre- 
judices of  the  many.  We  couiit  not  upon  the  approbation  of  the  light  and 
frivolous,  but  I  am  convinced,  that  all  thinking  and  discreet  men  will 
unite  with  us  in  a  fervent  aspiration,  that  our  visible  Church,  the  ark  of 
a  pure  theology,  may  endure  till  that  great  day,  when  the  angel  of  the 
Apocalypse  shall  raise  his  hand  to  heaven,  and  swear,  that  time  shall  be 
no  longer. 


155 


TESTIMONY  FOR  THE  RESPONDENTS. 

WEDNESDAY  MORNING,  March  13th.— 10  o'clock.* 

Mr.  Hiibbell,  in  his  opening,  referred  to  a  number  of  passages  in  the 
Constitution,  &c.,  which  it  was  afterwards  agreed,  should  be  considered  as 
in  evidence,  without  farther  reading.  We  insert  here  such  of  them  as 
have  not  been  given  at  length  before. 

Form  nf  Government,  Chap.  IX. — '^  Of  the  Chnrch  Session." 
"Sec.  1. — The  Church  Session  consists  of  the  Pastor  or  Pastors,  and  Ruling  Elders 
of  a  particular  conirrefration. 

"-See.  2 — Of  this  judicatory,  two  elders,  if  there  be  as  many  in  the  congregation, 
with  the  Pastor,  shall  be  necessary  to  constitute  a  quorum. 

"Sec.  3. — The  Pastor  of  the  congregation  shall  always  be  the  Moderator  of  the  sps- 
sion;  except  when,  for  prudential  reasons,  it  may  appear  advisable  that  some  other 
minister  should  be  invited  to  preside;  in  which  case  the  Pastor  may,  with  the  concur- 
rence of  the  session,  invite  such  other  minister  as  they  see  meet,  belonging  to  the  same 
Presbytery,  to  preside  in  that  case.  The  same  expedient  may  be  adopted  in  the  case  of 
sickness  or  absence  of  the  Pastor." 

Id.  Chap.  XIII. — ''Of  Electing  and  ordaining  Ruling  Elders  and  Deacons." 
"Sec.  2. — Every  congregation  shall  elect  persons  to  the  office  of  Ruling  Elder,  and 
to  the  office  of  Deacon,  or  either  of  them,  in  the  mode  most  approved  and  in  use  in  that 
congregation.     But  in  all  cases,  the  persons  elected  must  be  male  members,  in  full  com- 
munion in  the  church  in  which  they  are  to  exercise  their  office. 

********** 

"Sec.  6. — The  offices  of  the  Ruling  Elder  and  Deacon,  are  both  perpetual,  and  can 
not  be  laid  aside  at  pleasure.  No  person  can  be  divested  of  either  office  but  by  deposi- 
tion. Yet  an  Elder  or  Deacon  may  become,  by  age  or  infirmity,  incapable  of  perform- 
ing the  duties  of  his  office;  or  he  may,  though  chargeable  with  neither  heresy  nor  im- 
morality, become  unacceptable,  in  his  official  character,  to  a  majority  of  the  congrega- 
tion to  which  he  belongs.  In  either  of  these  cases,  he  may,  as  often  happens  with  res- 
pect to  a  minister,  cease  to  be  an  acting  Elder  or  Deacon." 

Form  of  Government,  Chap.  XII. — "  Of  the  General  Assembly." 

"  Sec.  7. — The  General  Assembly  shall  meet  at  least  once  in  every  year.  On  the 
day  appointed  for  that  purpose,  the  Moderator  of  the  last  Assembly,  if  present,  or  in 
case  of  his  absence,  some  other  minister,  shall  open  the  meeting  with  a  sermon,  and 
preside  until  a  new  Moderator  be  chosen.  No  Commissioner  shall  have  a  right  to  de- 
liberate or  vote  in  the  Assembly,  until  his  name  shall  have  been  enrolled  by  the  clerk, 
and  his  commission  publicly  read,  and  filed  among  the  papers  of  the  Assembly. 

"  Sec.  8. — Each  session  of  the  Assembly  shall  be  opened  and  closed  with  prayer. 
And  the  whole  business  of  the  Assembly  being  finished,  and  the  vote  taken  for  dissol- 
ving the  present  Assembly,  the  Moderator  shall  say  from  the  chair,—  "  'By  virtue  of 
the  authority  delegated  to  me,  by  the  Church,  let  this  General  Assembly  be  dissolved, 
and  I  do  hereby  dissolve  it,  and  require  another  General  Assembly,  chosen  in  the  same 
manner,  to  meet  at  on  the  day  of  A.  D.  ' — after 

which  he  sliall  pray  and  return  thanks,  and  pronounce  on  those  present  the  Apostolic 
benediction." 

Min.  1826.  pp.  37,  39,  40.  "  The  committee  to  whom  was  recommitted  the  report 
on  the  propriety  of  making  certain  alterations  in  the  existing  rules  which  govern  the 
proceedincs  of  the  General  Assembly,  and  if  necessary,  alterations  in  the  Constitution 
of  our  Church,  recommended: 

*  Mr  Hubbell's  opening  occupied  the  whole  of  Tuesday  aflernoon,  and  about  an  hour  of 
Wednesday  morning. 


£56  PRESBYTERIAN  CHURCH  CASE. 

"  7.  That  in  the  Form  of  Government,  chap.  XII,  sect  7,  the  words  'publicly  read,' 
ehould  be  exchanged  for  the  word  '  examined.'  In  favour  of  this  amendment,  the  com- 
mittee stated,  tliat  probably  much  time,  which  is  now  occupied  by  the  whole  Assem- 
bly in  having  the  commissions  publicly  read,  might  be  saved,  and  stricter  order  be  ob- 
served, by  the  adoption  of  rules  of  the  foilowing  import:  That  immediately  after  the 
opening  of  the  General  Assembly  and  the  constituting  of  the  house,  a  Committee  of 
Commissions  be  appointed,  with  instructions ;  and  that  the  house  adjourn  till  the  usual 
hour  in  the  afternoon  :  That  the  Committee  of  Commissions  be  instructed  to  examine 
the  commissions,  and  to  report  to  the  Assembly  immediately  after  its  opening  in  the 
afternoon,  on  those  commissions  which  are  unobjectionable,  and  on  those,  if  such  there 
be,  which  are  materially  incorrect,  or  that  are  otherwise  objectionable:  That  those 
whose  commissions  are  unobjectionable,  immediately  take  their  seats  as  members,  and 
proceed  to  business ;  and  that  the  first  act  be  the  appointment  of  a  Committee  of  Elec- 
tions, to  which  shall  be  referred  all  the  informal,  or  otherwise  objectionable  commis- 
sions, with  instructions  to  report  thereon  as  soon  as  practicable, 

********* 

"  It  was  also  resolved,  that  so  soon  as  the  alteration  proposed  in  the  7th  item  above 
enumerated,  shall  appear  to  have  been  constitutionally  adopted  by  the  Presbyteries,  the 
following  RULES  of  the  Assembly  shall  be  in  force. 

"  I.  Immediately  after  each  Assembly  is  constituted  with  prayer,  the  Moderator 
shall  appoint  a  Committee  of  Commissions. 

"  II.  The  commissions  shall  then  be  called  for,  and  delivered  to  the  Committee  of 
Commissions;  and  the  person  delivering  each  commission  shall  state  whether  the  prin- 
cipal or  the  alternate  is  present. 

"  III.  After  the  delivery  of  the  commissions  the  Assembly  shall  have  a  recess,  until 
such  an  hour  in  the  afternoon  as  will  afford  sufficient  time  to  the  committee  to  examine 
the  commissions. 

IV.  The  Committee  of  Commissions  shall,  in  the  afternoon,  report  the  names  of  all 
commissions  shall  appear  to  be  regular  and  constitutional,  and  the  persons  whose 
names  shall  be  thus  reported,  shall  immediately  take  their  seats  and  proceed  to  busi- 
ness. 

"  V.  The  first  act  of  the  Assembly,  when  thus  ready  for  business,  shall  be  the  appoint- 
ment of  a  Committee  of  Elections,  whose  duty  it  shall  be  to  examine  all  informal  and 
unconstitutional  commissions,  and  report  on  the  same  as  soon  as  practicable." 

Min.  1837,  p.  132.  "The  committee  to  whom  was  referred  the  report  of  the  com- 
mittee on  the  returns  of  the  Presbyteries  in  relation  to  the  proposed  alterations  and 
amendments  of  the  Constitution,  that  they  might  report  what  ought  to  be  done  in  conse- 
quence of  the  state  of  these  returns,  made  the  following  report,  viz.  That  there  are 
connected  with  the  Assembly,  eighty-eight  Presbyteries :  forty-five,  therefore,  are  neces- 
sary to  make  any  alteration  in  the  constitution  of  the  Church. 

***  *****  +  ** 

"In  relation  to  No.  7,  of  the  proposed  amendments  to  the  Form  of  Government,  it 
appears  that  fifty-three  Presbyteries  have  voted  in  favour  of  the  alteration,  and  thirteen 
against  it.  Wherefore  resolved,  that  the  proposed  amendment,  viz..  That  in  the  Form  of 
Government,  Chap.  XII.  Sect.  7,  the  words  ^publicly  read,'  should  be  exchanged  for 
the  word  '  examined,'  be,  and  the  same  is  hereby  adopted  as  a  part  of  the  constitution 
of  this  Church." 

Min.  1829,  p.  384.  "  Resolved,  That  the  Permanent  and  Stated  Clerks  be,  and  they 
hereby  are  appointed  a  standing  Committee  of  Commissions;  and  that  the  commission- 
ers to  future  Assemblies  hand  their  commissions  to  said  committee,  in  the  room  in 
which  the  Assembly  shall  hold  its  sessions,  on  the  morning  of  the  day  on  which  the 
Assembly  opens,  previous  to  11  o'clock;  and  further,  that  all  commissions  which  may 
be  presented  during  the  sessions  of  the  Assembly,  instead  of  being  read  in  the  house, 
shall  be  examined  by  said  committee,  and  reported  to  the  Assembly." 

Id.  p.  .518.  "  The  Regulations  of  the  Assembly,  on  the  subject  of  Statistical  Reports, 
are  subjoined.     It  is  required— 

"  1.  That  the  forms  of  sessional  and  Presbyterial  Reports,  sent  down  in  the  minutes, 
be  strictly  observed.  Deviation  from  these  frequently  requires  the  Stated  Clerk  of  the 
General  Assembly  to  copy  the  whole  report,  before  it  can  be  sent  to  the  press. 

"2.  That  in  the  sessional  report,  the  pastor  or  session  be  required  to  insert  in  the 
column  headed  "  Missionary  Funds,"  all  sums  of  money  collected,  or  procured  to  be 


TESTIMONY  FOR  THE  RESPONDENTS.  15-7 

collected  by  said  pastor  or  session  from  the  congregation  under  his  and  their  care  for 
any  evangelical  mission,  whether  foreign  or  domestic;  and  particularly  all  sums  col- 
lected for  the  Board  of  Missions  under  the  care  of  the  General  AssemWy,for  the  Ame- 
rican Home  Missionary  Society,  and  for  the  American  Board  of  Commissioners  for 
Foreign  Missions;  that'under  the  caption  of  "Commissioners'  Fund,"  he  returned  all 
moneys  collected  for  defraying  the  expenses  of  Commissioners  to  the  General  Assembly, 
whether  transmitted  to  the  Treasurer  of  the  Trustees  of  the  General  Assembly,  or  paid 
by  the  Presbytery  itself  to  its  own  Commissioners;  that  under  the  head  of  "Theologi- 
cal  Seminary  Funds,"  be  stated  all  funds  collected  for  any  Theological  Seminary  under 
the  care  of  the  General  Assembly,  or  under  the  care  of  any  Synod  belonging  to  said 
Assembly;  and  that  under  the  caption  of  "Education  Funds,"  be  returned  all  funds 
collected  for  promoting  the  charitable  and  religious  education  of  persons  in  Sabbath 
'  Schools;  and  especially  all  money  collected  for  the  education  of  poor  and  pious  youth, 
in  academies,  colleges,  or  Theological  Seminaries,  with  a  view  to  their  becoming  minis- 
ters of  the  gospel. 

Form  of  Government,  Chap.  XIX. — "  Of  Moderators.''^ 
"  1.  It  is  equally  necessary  in  the  judicatories  of  the  Church,  as  in  other  assemblies, 
that  there  should  be  a  Moderator  or  President;  that  the  business  may  be  conducted 
with  order  and  despatch. 

"  2.  The  Moderator  is  to  be  considered  as  possessing,  by  delegation  from  the  whole 
body,  all  authority  necessary  for  the  preservation  of  order;  for  convening  and  adjourn- 
ing the  judicatory ;  and  directing  its  operations  according  to  the  rules  of  the  Church. 
He  is  to  propose  to  the  judicatory  every  subject  of  deliberation  that  comes  before  them. 
He  may  propose  what  appears  to  him  the  most  regular  and  speedy  way  of  bringing  any 
business  to  issue.  He  shall  prevent  the  members  from  interrupting  each  other;  and  re- 
quire them,  in  speaking,  always  to  address  the  chair.  He  shall  prevent  a  speaker  from 
deviating  from  the  subject ;  and  from  using  personal  reflections.  He  shall  silence  those 
who  refuse  to  obey  order.  He  shall  prevent  members  who  attempt  to  leave  the  judica- 
tory without  leave  obtained  from  him.  He  shall,  at  a  proper  season,  when  the  delibe- 
rations are  ended,  put  the  question  and  call  the  votes.  If  the  judicatory  be  equally  di- 
vided he  shall  possess  the  casting  vote.  If  he  be  not  willing  to  decide,  he  shall  put  the 
question  a  second  time;  and  if  the  judicatory  be  again  equally  divided,  and  he  decline 
to  give  his  vote,  the  question  shall  be  lost.  In  all  questions  he  shall  give  a  concise  and 
clear  state  of  the  object  of  the  vote;  and  the  vote  being  taken,  shall  then  declare  how 
the  question  is  decided.  And  he  shall  likewise  be  empowered,  on  any  extraordinary 
emergency,  to  convene  the  judicatory,  by  his  circular  letter,  before  the  ordinary  time 
of  meeting. 

"  3.  The  Moderator  of  the  Presbytery  shall  be  chosen  from  year  to  year,  or  at  every 
meeting  of  the  Presbytery,  as  the  Presbytery  may  think  best.  The  Moderator  of  the 
Synod,  and  of  the  General  Assembly,  shall  be  chosen  at  each  meeting  of  those  judica- 
tories: and  the  Moderator,  or,  in  case  of  his  absence,  another  member  appointed  for  the 
purpose, shall  open  the  next  meeting  with  a  sermon,  and  shall  hold  the  chair  till  anew 
Moderator  be  chosen." 


Mr.  Hubbell  first  offered,     ' 

Min.  1837,  p.  456.  Section  3d  of  a  protest  against  the  abrogation  of 
the  «  Plan  of  Union." 

"  3.  We  protest  against  the  resolution  referred  to,  because  it  declares  the  said  '  Plan 
of  Union'  to  have  been  'totally  destitute  of  authority  as  proceeding  from  the  General 
Association  of  Connecticut,  which  is  invested  with  no  power  to  legislate  in  such  cases.' 
Even  on  the  assumption,  that  the  said  Association  was  invested  with  no  such  power — 
which,  it  seems  to  us,  both  indecorous  and  irrelevant  for  this  General  Assembly  to  as- 
sert as  a  reason  for  the  resolution  adopted — we  cannot  doubt  that  that  Association  had 
full  power  to  agree  to  the  stipulations  of  a  treaty  or  contract,  proposed  by  the  General 
Assembly  and  urged  on  the  acceptance  of  the  General  Association;  and  especially, 
when  it  is  considered,  that  by  acceding  to  the  said  stipulations,  the  said  Association 
relinquished  whatever  right  it  had  to  the  direction  and  regulation  of  the  members  of  its 
own  churches  in  the  new  settlements,  and  allowed  and  influenced  them  to  increase, 
both  the  numbers  and  the  pecuniary  and  spiritual  strength  of  the  Presbyterian  Church. 
And  even  if  the  plan  refewed  to  had  not  authority  in  so  far  as  it  emanated  from  the 


158 


PRESBYTERIAN  CHURCH  CASE. 


General  Association  of  Connecticut,  which  we  by  no  means  admit,  it  was  unquestiona- 
bly binding  on  the  General  Assembly,  by  virtue  of  its  own  engagement,  to  fulfil  Us  own 
obligations,  and  after  numerous  churches  had  been  formed  under  their  own  care,  the 
obligations  of  the  plan  appear  to  us  to  have  been  common  to  the  General  Assembly,  the 
General  Association  of  Connecticut,  and  thechurches.  Presbyteries,  and  Synods  formed 
in  pursuance  and  in  the  faith  of  it,  and  that  no  one  of  these  bodies  could  lawfully  abro- 
gate it  without  the  consent  of  all  the  others.  Our  opinion  therefore  is,  that  the  resolu- 
tion of  this  General  Assembly,  abrogating-  the  said  Plan  of  Union,  so  far  as  it  was  in- 
tended to  affect  churches  already  formed  under  its  provisions,  is  a  breach  of  faith,  and 
wholly  void  and  of  no  effect;  that  all  such  churches  have  a  right  to  continue  their  or- 
ganization on  the  conditions  of  the  said  plan  ;  and  that  it  is  the  duty  of  the  Presey  teries, 
the  Synods,  and  all  future  General  Assemblies  to  protect  them  in  that  right,  until  they 
shall  voluntarily,  under  the  kind  and  conciliatory  influence  of  the  aforesaid  bodies, 
adopt  the  Presbyterian  organization  in  full,  as  many  of  them  have  already  done,  and 
others,  we  are  happy  to  learn,  will  probably  soon  do,  if  allowed  to  exercise  their  choice 
unrestrained  by  the  attempted  exercise  of  assumed  authority," 

Bev.  John  M.  Krebs— before  sivorn  and  examined  for  the  relators. 
I  am  pastor  of  a  Presbyterian  church  in  Rutgers  street,  New  York. 
The  Presbytery  of  which  I  am  a  member — the  Presbytery  of  New 
York — is  in  connexion  with  the  General  Assembly.  I  was  elected  the  Per- 
manet  Clerk  of  the  Assembly  in  1837,  and  hold  that  office  still.  The 
Committee  of  Commissions  consists  of  Dr.  McDowell,  the  Stated  Clerk 
of  the  General  Assembly,  and  myself.  The  difierence  between  the  Stat- 
ed and  Permanent  Clerks  is  this.  The  latter  makes  up  the  journal  of  the 
Assembly  from  day  to  day,  reads  it,  and  keeps  all  the  papers  until  after 
the  dissolution  of  that  body,  when  he  hands  them  over  to  the  Stated 
Clerk.  The  one  is  the  writing  clerk,  and  the  other  the  depositary  of  the 
records.  There  is  also  another  clerk  elected  at  each  meeting  of  the  As- 
sembly, who  is  called  the  Temporary  Clerk,  and  whose  business  it  is  to 
assist  the  Permanent  Clerk.  His  office  ceases  with  the  dissolution  of  the 
Assembly.  The  Committee  of  Commissions,  as  I  said,  consists  of  the  Per- 
manent and  Stated  Clerks.  Some  weeks  previous  to  the  meeting  of  the 
General  Assembly  of  1838,  Dr.  McDowell  and  I  had  published  in  seve- 
ral religious  newspapers,  a  notice,  that  between  four  and  five  o'clock  on 
the  afternoon  of  the  day  previous  to  the  meeting,  and  between  nine  and 
eleven  o'clock  on  the  morning  of  the  meeting,  the  Committee  of  Com- 
missions would  be  in  attendance,  to  receive  and  examine  commissions. 
In  order  to  be  ready  for  the  great  press  of  business  which  is  usual  at  the 
opening  of  the  Assembly,  1  had  prepared,  before  leaving  New  York,  a 
blank  form  of  the  usual  opening  minute,  with  a  list  of  the  Synods  and 
Presbyteries,  to  which  I  might  attach  the  names  of  persons  who  should 
present  commissions.  These  were  all  our  preliminary  arrangements. 
We  met  on  the  afternoon  of  Wednesday,  the  16th  of  May,  in  the  session- 
room  of  the  Seventh  Presbyterian  Church,  and  that  afternoon,  from  one 
hundred  to  a  hundred  and  twenty  commissions  were  handed  in  to  us. 
Every  person  presenting  a  commission  is  asked,  are  you  the  Principal  or 
the  Alternate  named  in  this  commission?  The  Principal  is  the  one  first 
named,  and  then  to  provide  for  his  absence,  another  is  appointed,  who  in 
any  emergency  may  take  the  seat.  If  any  one  answers  that  he  is  the  Al- 
ternate, we  make  an  arbitrary  mark,  to  designate  the  very  man  who  pre- 
sented the  commission.  After  having  thus  received  about  one  hundred, 
or  a  hundred  and  twenty  commissions,  on  the  afternoon  of  Wednesday, 
and,  so  far  as  we  had  opportunity,  examined  whether  they  were  regular, 


TESTIMONY  FOR  THE  RESPONDENTS.  159 

and  put  the  names  from  those  that  were  approved  on  the  roll,  we  adjourn- 
ed until  nine  o'clock  on  Thursday  morning,  when  about  one  hundred 
more,  or  the  balance,  were  presented.  On  the  roll  thus  made  out,  I  had 
inserted  the  names  of  two  hundred  and  fourteen  or  fifteen  commissioners. 
Four  or  five  additional  ones  presented  were  not  inserted,  because  of  some 
defect,  or  some  circumstance  in  regard  to  which  we  were  not  authorized 
to  decide.  These  we  kept  separate  from  the  others,  though  as  it  was  af- 
terwards determined,  they  were  actually  entitled  to  seats,  in  order  to  refer 
them  to  the  Committee  of  Elections,  the  appointment  of  which  is  the  first 
business  in  order  after  the  report  of  the  roll  by  the  Committee  of  Com- 
missions. The  Committee  of  Elections  is  chosen  from  among  the  undis- 
puted members  of  the  Assembly,  and  it  is  their  duty  to  examine  and  re- 
port on  the  defective  commissions.  It  is  a  standing  rule,  that  their  ap- 
pointment shall  be  the  first  business  to  which  the  attention  of  the  Assem- 
bly is  directed.  On  the  afternoon  of  Wednesday,  out  of  one  hundred,  or 
one  hundred  and  twenty,  who  presented  commissions,  there  were  none 
that  I  recollect^  and  certainly  not  more  than  five,  except  those  who  are 
commonly  denominated  Old-school  men.  The  balance  received  next 
morning  included  both  Old  and  New-school.  Their  commissions  were 
examined,  and  as  many  as  were  found  correct  were  enrolled.  During 
our  session  on  Thursday  morning,  (I  can't  pretend  to  give  the  precise  or- 
der of  events,)  the  Rev.  Mr.  Barnes  of  the  Third  Presbytery  of  Phila- 
delphia, and  the  Rev.  Mr.  Brainerd  of  the  same  Presbytery,  presented 
their  commissions.  I  don't  recollect  seeing  the  commission  of  any  elder 
from  that  Presbytery.  We  informed  them  that  we  could  not  receive  the 
commissions;  that  the  Third  Presbytery  had  been  dissolved  by  the  As- 
sembly of  1837,  and  that  therefore  we  could  not  recognize  it;  that  the 
General  Assembly  must  itself  decide  the  matter,  anl  not  its  ofiicers.  Mr. 
Barnes  expostulated  with  Dr.  McDowell,  who  told  him  that  he  could  ex- 
ercise no  discretion  on  the  subject.  At  that  moment,  Mr.  Squier  pre- 
sented his  commission,  and  we  told  him  that  it  could  not  be  received,  be- 
cause the  Assembly  of  1837  had  declared  the  Synod  of  Geneva,  to  which 
his  Presbytery  belonged,  no  longer  a  part  of  the  Presbyterian  Church j 
that  his  remedy  was  in  the  Assembly,  and  not  in  its  officers.  Mr.  Barnes 
and  Mr.  Squier  were  both  present  during  this  colloquy.  Mr.  Squier 
said  to  Mr.  Barnes,  "Yours  is  a  very  different  case  from  mine:  your 
Presbytery  was  dissolved  by  the  General  Assembly." 

The  counsel  for  the  Relators  objected  to  the  witness's  repeating  what 
Mr.  Squier  had  said. 

In  the  course  of  our  session,  several  other  commissions  of  the  same  kind 
were  presented.  The  Rev.  Dr.  Richards  presented  one,  and  to  him  we 
gave  the  same  answer,  as  to  the  rest:  That  we  had  no  right  to  receive  his 
commission,  no  liberty  to  decide  his  case,  unless  further  orders  were 
given  to  us  by  the  Assembly.  We  treated  all  alike — that  is  all  the  com- 
missioners from  the  four  exscinded  Synods:  We  were  very  civil  to  them, 
and  told  them  that  their  only  remedy  was  in  the  General  Assembly. 

Next  we  were  met  by  a  deputation,  very  respectable  in  appearance, 
one  of  whom  I  think  was  Mr.  Squier,  who  said  they  were  authorized  to 
offer  the  commissions  from  the  four  exscinded  Synods,  and  to  demand  that 
they  should  be  received.  We  replied,  that  they  could  not  be  received 
or  enrolled,  and  gave  ^n  absolute  refusal.     One  of  the  gentlemen  asked 


IQQ  PRESBYTERIAN  CHURCH  CASE. 

whether  "we  could  not,"  meant  "we  would  not."  I  replied,  that  we  did 
not  mean  to  be  disrespectful,  but  that  if  he  liked  that  better,  we  would 
not.  The  Rev.  Mr.  Aikin  di  Cleaveland,  who  was  one  of  the  persona 
rejected,  then  asked  those  standing  by  to  take  notice  of  the  refusal.  We 
observed  that  this  was  not  necessary,  that  our  testimony  would  be  suffi- 
cient, and,  that  if  he  chose,  we  would  endorse  the  refusal  upon  the  com- 
missions. He  said,  "We  shall  complain  to  the  Assembly."  I  answered, 
that  that  was  just  what  we  wanted  them  to  do  ;  that  their  i-emedy  was  in 
the  Assembly,  and  it  would  meet  the  next  hour.  This  is  all  I  recollect 
in  regard  to  tiie  meeting  of  the  Committee  of  Commissions.  As  to  the 
locking  of  the  door:  The  little  room  in  wliich  we  sat  is  under  the  pulpit, 
and  from  it  two  doors,  one  on  each  side  of  the  pulpit,  give  access  to  the 
body  of  the  church.  On  each  side  of  the  church  are  two  large  doors,  and 
by  one  of  these,  persons  in  the  grave-yard  may  enter  the  house.  On 
Wednesday  and  Thursday,  we  found  that  the  disposition  of  persons,  to 
press  through  the  little  doors  by  the  sides  of  the  pulpit,  was  a  great  an- 
noyance. They  interrupted  us,  while  asking  questions  and  receiving  an- 
swers from  the  commissioners  who  presented  themselves.  I  repeatedly 
locked  the  door  that  opened  from  the  session-room  into  the  grave-yard, 
and  also  that  on  the  left  side  of  the  pulpit— the  left  side  as  you  face  the 
audience.  My  table  was  near  the  door  locked.  When  any  one  came, 
wishing  to  enter,  I,  perhaps  not  being  so  kindly  disposed  as  I  should  have 
been,  refused  to  open  it  The  room  may  be  eight  or  ten  feet  wide.  The 
five  large  doors  in  the  body  of  the  church  were  all  open,  and  one  of  the 
little  doors  from  the  session-room  was  constantly  so.  The  door  by  which 
we  sat  was  closed,  in  order  to  prevent  the  room  from  being  made  a  pas- 
sage-way. The  applications  for  entrance  were  generally  made  by  Old- 
school  men,  and  bein^xcluded  they  went  round  to  one  of  the  other  doors. 
Public  worship  commenced  at  eleven  o'clock,  at  which  hour,  our  room 
was  cleared,  and  we  were  left  making  out  the  roll.  This  was  necessary, 
in  order  to  have  the  roll  complete,  by  the  time  the  Assembly  was  consti- 
tuted. Dr.  McDowell  and  I,  entered  the  church  through  the  door  previ- 
ously locked,  (the  west  door,)  bearing  the  roll  in  our  hands,  about  five 
minutes  previous  to  the  close  of  the  religious  exercises.  The  sermon  was 
done,  and  the  singing,  I  think,  had  commenced,  the  prayer  after  the  ser- 
mon being  over,  and  the  Moderator  still  in  the  pulpit.  I  took  my  stand 
by  the  clerks'  table,  which  is  under  the  pulpit,  and  just  beneath  the  Mo- 
derator's chair,  the  latter  being  raised  from  the  floor  on  a  dais.  The  table 
is  a  large  one,  appropriate  to  the  business  of  the  clerks,  and  is  from  four 
to  five  feet  long.  The  position  which  I  ordinarily  assume  is,  at  the  head 
of  the  broad  aisle  ;  where  1  sit,  with  my  back  to  the  audience,  and  my 
face  toward  the  Moderator,  for  the  convenienc'c  of  writing.  Before  get- 
ting to  my  seat,  I  took  my  position  on  the  west  side  of  the  table,  facing 
the  audience :  I  cannot  say  whether  I  sat  or  stood.  I  never  before  had 
seen  the  house  so  crowded.  The  galleries  and  the  floor  were  entirely  full. 
I  either  sat  or  stood  on  the  west  side  of  the  table,  facing  the  audience,  un- 
til Dr.  Elliott  entered  the  chair,  and  assumed  the  place  of  Moderator.  I 
was  present  during  the  constituting  prayer,  immediately  after  which  the 
Moderator  called  for  our  report.  I  was  about  to  speak,  when  I  saw  Dr. 
Patton  on  the  floor,  and  heard  his  voice  saying,  two  or  three  times, 
"  Moderator — Moderator."     Some  one  told  me  to  go  on  with  the  roll,  but 


TESTIMONY  FOR  THE  RESPONDENTS,  IQX 

I  remained  quiet.  The  Moderator  directed  roe  to  report  the  roll.  Dr. 
Patton  said,  that  he  wished  to  offer  certain  resolutions,  and  desired  to  take 
the  sense  of  the  house  upon  them  without  debate.  The  Moderator  told 
him  he  was  not  in  order,  as  the  first  business  was  the  report  of  the  clerks 
upon  the  roll.  Dr.  Patton  said,  that  he  had  had  the  floor  before  the  clerks. 
The  Moderator  replied,  that  the  first  business  was  the  report  on  the  roll. 
Dr.  Patton  said,  "  I  must  take  an  appeal  from  your  decision  to  the  house." 
The  Moderator  answered,  there  could  be  no  appeal,  as  there  was  no  house 
in  existence.  During  this  colloquy,  of  which  I  pretend  to  give  only  the 
substance,  not  the  precise  terms,  I  was  waiting  until  the  floor  should  be 
cleared  and  silence  obtained.  Dr.  Patton  sat  down,  and  I  proceeded 
to  report  the  roll.  I  read  it  as  clearly  and  distinctly  as  I  could ;  and 
also  reported  foUr  or  five  informal  commissions,  which  had  been  pre- 
sented but  not  enrolled,  in  order  that  they  might  go  to  the  Committee 
of  Elections,  which  it  was  usual  to  appoint  then.  I  did  not  report  the 
commissions  from  the  excluded  Synods.  We  did  not  think  we  had 
any  right  to  do  so.  There  was,  however,  a  difference  of  opinion,  be- 
tween my  colleague  and  myself,  in  regard  to  this  subject.  I  supposed  it 
was  our  duty  to  receive  and  report,  but  not  to  enrol  them.  He  thought, 
that  we  should  not  receive  them,  any  more  than  commissions  from  other 
churches  which  were  not  Presbyterian ;  that  their  only  remedy  was  in 
the  Assembly.  He  being  older  than  myself,  I  yielded  my  assent  though 
retaining  my  opinion.  I  believed,  then,  and  I  believe  now,  that  we 
ought  to  have  received  them,  and  reported  on  them,  stating  the  circum- 
stances. Dr.  McDowell  would  not  consent  to  this;  and  I,  accordingly, 
made  such  a  report  as  he  would  consent  to.  After  our  report  had  been 
made,  and  the  time  was  come  for  the  next  business — the  appointment  of 
a  Committee  of  Elections,  to  whom  all  the  doubtful  commissions  might 
be  referred — the  Moderator  announced,  that  those  persons,  whose  names 
had  been  reported,  were  to  be  considered  as  duly  elected,  members  of 
the  General  Assembly ;  and  added,  that  if  there  were  any  other  commis- 
sioners present,  who  had  not  had  an  opportunity  of  handing  in  their  com- 
missions, now  was  the  time  to  present  them.  Dr.  Mason  rose,  and, 
holding  in  his  hand  a  bundle  of  papers  of  the  same  size  with  that  here 
exhibited,  which,  I  presume,  is  the  same,  said,  that  he  offered  certain 
commissions  from  the  Presbyteries  within  the  bounds  of  the  four  dis- 
owned Synods;  that  he  had  offered  them  to  the  clerks,  who  had  rejecteg 
them ;  and  now  moved  that  the  roll  should  be  completed,  by  insertind 
the  names  of  the  commissioners,  to  whom  they  belonged.  He  did  not 
call  them,  however,  the  disowned  Synods;  perhaps  he  named  them. 
This  is  the  substance  of  what  he  said.  The  Moderator  told  him  he  was 
out  of  order  at  that  time.  Dr.  Mason  said,  that,  with  great  respect,  he 
must  appeal  to  the  house  from  that  decision.  The  Moderator  refjlied, 
that  his  appeal  was  out  of  order,  and  Dr.  Mason  obeyed  him,  and  sat 
down.  Then  Mr.  Squier  rose,  on  the  opposite  side  of  the  aisle  from  Dr. 
Mason,  and  stated,  (I  recollect  only  the  facts  now,)  that  he  had  a  com- 
mission from  the  Presbytery  of  Geneva ;  that  he  had  offered  it  to  the 
clerks,  and  it  had  been  refused  by  them ;  and  that  he  now  demanded  his 
seat  on  that  floor.  The  Moderator  inquired,  whether  that  Presbytery 
was  within  the  bounds  of  the  Synod  of  Geneva,  or,  of  the  disowned  Sy- 

21 


152  PRESBYTERIAN  CHURCH  CASE. 

nods;  I  do  not  recollect  precisely  which,  Mr.  Squier  answered,  that 
it  was.  The  Moderator  replied,  "  We  do  not  know  you,  sir."  At  this 
point  it  was  that  Mr.  Cleaveland  rose,  and  began  to  read  a  paper  ;  what  it 
contained,  or  what  he  said,  I  cannot  tell.  There  was  a  noise  of  calls  to 
order.  The  Moderator  called  to  order,  and  the  members  about  me 
likewise.  If  I  recollect  any  thing  at  all  of  what  Mr.  Cleaveland  said,  it 
Was  something  about  legal,  (I  thought  he  used  the  word  "legal,")  and  it 
was  the  only  one  impressed  upon  me  at  the  time. 

Some  farther  questions  being  asked,  in  regard  to  what  Mr.  Cleaveland 
had  said,  Mr.  Meredith  objected  to  the  witness'  saying  any  thing  more, 
as  he  had  already  stated  that  he  recollected  nothing  more. 

Judge  Rogers.     The  witness  may  state  what  he  recollects. 

Mr.  Krebs.  I  don't  recollect  any  thing  else  distinctly:  I  don't  know 
what  Mr.  Cleaveland  said. 

Mr.  Ingersoll.  Do  you  mean,  that  you  heard,  and  do  not  now  re- 
collect; or  that  you  did  not  know  at  the  time? 

Mr.  Krebs.  I  did  not  know  then  what  he  said,  and  had  only  a  con- 
fused notion  from  having  caught  the  word  legal  or  something  oif  that  sort, 
but  it  is  all  darkness  to  me.  I  was  looking  on  and  endeavouring  to  see 
and  hear.  My  recollection  is,  that  when  Mr.  Cleaveland  commenced, 
his  face  was  towards  the  Moderator,  and  that  he  gradually  turned  round, 
until  he  faced  the  western  wall.  While  he  read,  there  were  calls  to  order 
from  the  Moderator,  and  those  near  him,  intermingled  with  the  waving  of 
hands,  and  the  voices  of  some  saying  "  Hush!  Hush!"  This  thing  con- 
tinued for  a  little  while.  The  reason  that  I  did  not,  and  could  not  hear, 
was,  that  there  was  too  much  noise.  I  should  observe  that,  by  this  time, 
after  the  report  of  the  roll,  I  had  moved  round  to  the  place  which  I  usu- 
ally occupied— a  little  stool,  without  a  back,  so  that  I  could  face  either  the 
audience  or  the  Moderator.  Mr.  Cleaveland's  reading,  or  speaking,  con- 
tinued, his  voice  mingling  with  the  others.  Then  there  was  a  sort  of  con- 
fused buzz,  and  the  next  distinct  sound,  overtopping  all  the  rest,  was  a 
loud  "  Aye !"  Very  rapidly  after,  at  so  small  an  interval  that  I  could 
not  pretend  to  mark  it,  but  very  quickly,  in  rapid  succession,  there  was 
another  loud  "Aye!"  I  heard  no  questions  or  motions.  I  think,  at  this 
time,  the  cries  to  order  were  not  so  loud  as  they  had  been.  My  attention 
was  particularly  directed  to  the  place  where  Mr.  Cleaveland  stood,  but, 
now,  many  persons  were  standing  up  between  me,  as  I  stood  on  the  floor, 
and  the  actors  in  the  scene,  and  shut  them  out  entirely  from  my  view.  I 
had  risen,  and  was  standing,  looking  sometimes  towards  the  Moderator, 
and  sometimes  back  again.  I  think  I  heard  a  third  "Aye!"  and  that 
very  loud,  and  a  few  ayes  distinct  from  the  mass,  in  a  very  shrill  key.  I 
had  no  idea  at  the  time  to  what  these  ayes  were  a  response.  I  endeavoured 
to  hear  in  order  to  record  the  proceedings — as  clerk,  to  catch  the  motion,  if 
I  could  hear  any.  Well,  the  next  thing  I  recollect  was  a  general  movement 
in  the  body  of  men  around  Mr.  Cleaveland,  towards  the  east  door  of  the 
church.  I  could  see,  as  they  were  moving  off,  some  putting  on  their 
hats;  and  some  jumped  over  the  partitions  intervening  between  the  two 
ranges  of  pews.  One  person  returned  from  the  door,  as  near  as  I  could 
see,  and  shouted  out,  that  the  General  Assembly  of  the  Presbyterian 
Church  would  meet  in  Mr.  Barnes's  lecture-room,  immediately.  I  don't 
know  who  it  was.     It  was  not,  to  my  knowledge.  Dr.  Fisher.     I  don't 


TESTIMONY  FOR  THE  RESPONDENTS.  Ig3 

know  whether  it  was  he  or  not,  but  I  think  it  was  not.  It  was  a  notice 
.  given  by  some  person  who  returned,  for  the  information  of  the  persons 
assembled  there.  I  don't  recollect  the  exact  words  of  the  notice.  Well, 
the  persons  engaged.in  this  affair  having  moved  off,  the  tumult  subsided,  and 
the  Assembly  was  left  to  transact  its  business  quietly.  I  am  a  little  near- 
sighted, but  this  defect  is  repaired  by  artificial  means.     I  hear  very  well. 

The  Assembly  continued  to  sit  in  the  Seventh  Church,  two  weeks,  or 
longer — certainly  for  two  weeks.  The  great  mass  of  those  who  left  the 
house,  moved  off  down  the  aisle  very  regularly;  I  speak  of  but  a  few  per- 
sons who  had  their  hats  on,  and  jumped  over  the  backs  of  the  pews.  A 
mass  of  men  moving  off  in  that  way  must  have  made  a  noise.  During 
the  time  that  the  tumult  continued — this  word  conveys  the  very  idea 
.that  the  scene  impressed  upon  me  at  the  time,  which  I  say  without  intend- 
ing any  disparagement — a  motion  was  pending  for  the  appointment  of  a 
Committee  of  Elections.  Whether  this  motion  was  made  before  Dr. 
Mason  rose,  or  while  Mr.  Cleaveland  was  on  the  floor  reading,  I  can't 
say — one  of  the  two  certainly.  The  noise  was  very  great.  Some  called 
to  order,  and  others  said,  "Hush!  let  them  go  on."  The  Moderator 
said,  that  we  would  wait  till  the  tumult  had  subsided,  and  the  house  had 
got  quiet;  that  we  could  not  now  proceed  to  business.  The  Moderator 
merely  sat  still  in  his  chair,  or  perhaps  he  rose.  I  kept  in  my  place, 
waiting  until  we  could  go  on.  After  their  departure,  the  appointment  of 
a  Committee  of  Elections  was  made^  to  whom  were  referred  all  the  doubt- 
ful commissions.  This  was  the  first  business  done  after  their  departure. 
I  don't  recollect  any  thing  else  that  was  done  then. 

I  cannot  tell  the  length  of  time  that  elapsed  from  when  Dr.  Patton  rose. 
From  Mr.  Cleaveland's  rising  till  the  departure  of  his  friends  from  the 
church,  was  perhaps  six  or  seven  minutes,  or  not  so  long.  I  have  no  dis- 
tinct impression  as  to  the  time:  I  was  very  much  amazed,  and  looked  on 
in  great  wonder.  Dr.  Elliott  had  made  a  call  for  commissions  before  Dr. 
Mason  rose.  I  cannot  say  whether  the  motion  for  the  appointment  of  a 
Committee  of  Elections  was  made  after  Dr.  Mason,  or  after  Mr.  Cleave- 
land's rising.  I  think  not  before  Dr.  Mason  rose,  because  the  Moderator 
had  just  then  called  for  other  commissions,  which,  if  regular,  were  to  be 
enrolled,  and,  if  not  regular,  referred  to  the  Committee  of  Elections.  The 
reason  of  this  uncertainty  is,  that  when  motions  are  made,  the  clerks 
endeavour  to  ascertain  that  they  are  made,  but  are  not  very  solicitous  to 
discover  who  make  them.  I  did  not  hear  any  noes  on  Mr.  Cleaveland's 
motion.  I  did  not  myself  vote;  I  was  not  a  member  of  the  Assembly. 
The  gentleman  who  asked  me  whether  by  "  I  could  not,"  I  meant  "  I 
would  not,"  was  the  Rev.  Mr.  George  Duffield  of  New  York.  He  was 
not  a  commissioner,  but  having  come  merely  with  his  friends,  he  inter- 
posed then.  Mr.  Duifield  had  been  for  five  years  my  pastor,  and  it  was 
on  the  ground  of  my  familiarity  with  him,  and  without  meaning  to  be 
uncivil,  that  I  told  him,  that  if  he  liked  that  form  of  expression  better,  I 
■would  not.  I  have  with  me  the  roll  that  I  called.  This  is  it.  (Producing 
a  bundle  of  papers.)  This  is  the  original  paper,  the  blank  prepared  by 
me,  before  I  left  New-York.  In  all,  there  were  enrolled  about  two  hun- 
dred and  fifteen  members.  I  reported  five  other  names  from  commissions 
that  were  defective,  informal,  or  irregular,  making  in  all  two  hundred 
and  twenty.     These  last  were  referred  to  the  Committee  of  Elections, 


|g4  PRESBYTERIAN  CHURCH  CASE. 

and,  on  their  report,  were  entered  on  the  roll,  with  the  exception  of  a  min- 
ister and  elder  from  the  Presbytery  of  Green  Brier — a  new  Presbytery. 
The  house  was  not  satisfied  \vith  the  report  in  regard  to  these  two,  and 
their  case  was  referred   back.      Again   they  reported,  and   both  were 
admitted.     Two  hundred  and  twenty  were  therefore  reported  that  day. 
The  commissioners  so  enrolled  had  all  presented  their  commissions  to  us. 
No  name  was  on  the  roll,  for  which  we  had  not  a  commission  in  our 
hands,  and  unless  we  were  satisfied  that  the  commissioner  was  present. 
I  did  not  call  the  roll  in  the  morning,  after  they  had  retired  to  the  First 
Church,  but  on  the  opening  of  the  Assembly- in  the  afternoon,  a  motion 
was  made  to  call  it,  to  see  how  many  of  those  who   were  recorded 
answered,  and  to  mark  the  absentees.     There  answered  one  hundred  and 
fifty-two  of  those  whose  names  were  on  the  roll — I  speak  to  the  best  of 
my  recollection,  and  of  numbers,  about  which  I  took  pains  to  inform 
myself.     They  are  recorded  in  that  manuscript,  or  in  the  subsequent  part. 
The  Minutes  occupy  five  or  six  books  of  twelve  sheets  each.     One  hun- 
dred and  fifty-two  were  recorded  present,  and  sixty-eight  were  recorded 
absent.     On  the  next  morning,  of  these  sixty-eight,  three  appeared,  and 
requested  that  their  presence  might  be  noted.    These  were  Dr.  Green,  a  Mr. 
King,  and  Mr.  Snowden.     They  had  been  enrolled  and  present  the  day 
before.     Mr,  King  was  either  an  elder  or  minister:  both  the  others  were 
ministers.  They  had  been  present  on  Thursday  morning,  and  their  absence 
was  excused,  because  of  the  inclemency  of  the  weather,  and  their  weak  and 
feeble  health,  at  the  time  of  calling  the  roll.  Of  the  remaining  absentees,  two 
others  subsequently  appeared  in  the  Assembly,  and  continued  with  to  us  the 
end.     I  saw  them,  and  heard  them  vote  and  speak.     T  don't  know  whether 
they  had  gone  off  with  the  party  that  retired  to  the  First  Church.     They 
were  the  Rev.  Elipha  White,  and  the  Rev.  Mr.  Magruder,  of  Charleston 
Union  Presbytery.     No  note  was  taken  of  their  subsequent  appearance: 
they  made  speeches  and  voted.     At  the  dissolution  of  the  Assembly,  Mr. 
White  came  and  had  his  mark  removed  from  the  roll,  saying  that  he  had 
been  out  only  a  few  minutes.     To  the  original  roll  of  four  hundred  and 
twenty,  were  subsequently  added  four.     Mr.  John  Green,  an  elder  from 
Transylvania  Presbytery,  appeared,  offered  his  commission,  was  approved 
and  enrolled,  on  a  day  which  is  here  marked.      It  was  the.  ninth  day  of 
our  meeting.     There  also  appeared,  under  the  same  circumstances,  Aaron 
W.  Lyon  of  the  Presbytery  of  Arkansas,  on  the  twelfth  day,  and  he  was 
enrolled.     On  the  eleventh  day  appeared  the  Rev.  Wm.  W.  Martin,  and 
Henry  L.  Fabrigue,  of  the  Presbytery  of  Salem,  in  the  Synod  of  Indiana. 
None  of  these  had  been  on  the  original  roll.     The  persons  thus  tardy 
appeared  before  the  Committee  of  Commissions;  but  the  latter  had  no 
right  to  inquire  why  they  were  so  late:  they  must  answer  for  this  to  their 
own  Presbyteries.     Messrs.  Martin  and   Fabrigue  were  late,  and  they 
looked  sick.     I  inquired  of  them  what  had  happened.     During  the  calling 
of  the  roll,  to  mark  absentees,  Mr.  Scott  was  inquired  of,  or  he  himself 
rose  to  state,  why  he  did   not  answer  to  his  name.     I  think  Mr.  Scott 
was  afterwards  present,  and  that  his  case  is  referred  to  on  the  minutes. 
The  names  of  these  two  were  upon  the  original  roll.     Mr.  Scott  asked 
permission  to  state  his  reason:  he  did  not  answer  to  his  name,  but  got 
up  immediately  afterwards.     I  do  not  recollect  his  reason.     He  attended 
that  day.     I  have   no  personal  acquaintance  with  him,  and  should  not 


TESTIMONY  FOR  THE  RESPONDENTS.  J  65 

know  him  if  I  saw  him.  The  minute  which  I  have  referred  to — that 
relating;  to  Mr.  Scott's  explanation — was  written  by  Mr.  Crane,  the  Tem- 
porary Clerk.  The  minute  does  not  state  his  reason.  On  a  sebsequent 
day,  but  on  what  occasion  I  don't  recollect,  Mr,  Eagleton  rose,  in  the 
course  of  debate,  and  said  that  he  did  not  feel  at  liberty  to  acknowledge 
that  as  the  Assembly.  He  did  not  say  that  he  had  joined  the  other:  I 
understood  him  to  repudiate  both.  Dr.  Hill  was  one  of  the  two  hundred 
and  twenty.  He  was  marked  absent  on  the  afternoon  of  the  first  day, 
and  that  is  all  that  I  know  about  him.  Mr.  Jamieson  was  marked  absent, 
and  that  is  all  I  know  about  him.  Mr.  Ralph  Smith  was  also  marked 
absent,  and  I  knew  nothing  farther  in  regard  to  him — I  mean  of  my  own 
knowledge:  I  am  not  speaking  of  rumors,  or  subsequent  information. 

Cross-examined  by  Mr.  Meredith.  The  papers  in  my  hand  are  not 
mere  memoranda,  made  by  myself,  of  the  occurrences  of  the  organization 
of  the  Assembly.  I  will  tell  how  they  were  made  up.  At  the  opening 
of  the  Assembly  in  the  afternoon,  I  read  the  minute  I  had  prepared,  and 
proposed  to  notice  in  a  general  way,  that  a  disturbance  had  taken  place. 
This  minute  was  objected  to,  and  not  allowed  to  stand.  It  was  said,  that 
it  was  not  usual  to  take  any  notice  of  transactions  which  led  to  nothing; 
that  when  a  resolution  had  been  debated,  if  it  were  withdrawn,  it  was  not 
customary  to  insert  it  on  the  minutes — it  had  been  abortive.  It  was  said, 
during  the  remarks  on  the  correctness  of  the  minutes,  that  my  report 
should  not  stand.  At  the  same  time,  I  think,  though  my  recollection  is 
a  little  confused,  a  committee  was  appointed  to  prepare  a  minute,  which 
should  give  a  full  account  of  the  transaction.  My  account  was  very 
short  and  concise — merely  stating,  that  Dr.  Mason  had  made  a  motion, 
which  had  been  declared  by  the  Moderator  out  of  order;  that  then  a 
scene  of  confusion  occurred,  and  that  after  the  tumult  had  subsided,  we 
had  proceeded  to  business.  A  committee  consisting  of — the  record  does 
not  state  whom — was  appointed.  I  recollect  that  Dr.  Nott  and  Dr.  El- 
liott were  on  the  committee:  these  two  I  recollect,  and  perhaps  might 
remember  others,  if  their  names  were  suggested  to  me.  I  think  a  minute 
was  made  of  the  appointment  of  this  committee.  I  am  sure  that  I  made  a 
note  with  my  pencil,  that  that  was  the  place  in  which  it  should  be  insert- 
ed. It  is  very  customary  for  the  Assembly,  when  not  satisfied  with  a 
minute,  to  appoint  a  committee  to  prepare  another,  to  take  the  place  of  the 
clerk's.  In  such  case,  all  I  have  before  made,  is  erased  or  cut  out,  and 
that  was  the  way  here.  There  is  no  record  here  of  the  appointment  of 
the  committee.  This  record  is  the  prepared  minute,  and  is  inserted,  as 
you  see,  written  on  different  coloured  paper  from  that  which  I  brought 
from  New  York. 

By  Mr.  fVood.  I  do  not  recollect  who  moved  the  appointment  of  a 
Committee  of  Elections.  I  presume  the  motion  was  seconded.  I  made 
a  minute  of  it  at  the  time  it  was  made.  I  am  in  the  habit  of  making  full 
records  at  the  time,  if  possible,  and  if  not,  notes  to  be  filled  up  afterwards. 
I  am  not  confident  whether  the  motion  was  made  while  Mr.  Cleaveland, 
or  Dr.  Mason  was  speaking.  My  strong  impression  is,  that  it  was  when 
Dr.  Mason  was  on  the  floor,  and  that  the  proceeding  was  interrupted  by 
the  noise.  I  cannot  tell  certainly,  whether  it  was  made  while  Dr.  Mason 
was  on  the  floor,  or  after  he  sat  down,  or  after  Mr.  Cleaveland  rose.  I 
have  no  doubt  the  "Moderator  was  in  order,  when  he  made  proclama- 


IQQ  PRESBYTERIAN  CHURCH  CASE. 

tion,  that  those  who  had  not  yet  preiented  their  commissions,  should 
hand  them  in.  This  proclamation  preceded  the  appointment  of  the  Com- 
mittee of  Elections.  This  committee  was  not  appointed  until  after  Mr. 
Cleaveland's  motion. 

Mr.  Joshua  Moore's  commission  was  presented  after  the  proclamation 
of  the  Moderator,  and  after  the  appointment  of  the  committee.  He  did 
not  present  it  until  after  the  election  of  a  Moderator.  The  record,  in  re- 
gard to  this  matter,  is  wrong;  it  was  not  made  in  my  presence.  I  will 
say,  now,  what  I  think  was  done.  The  record,  in  regard  to  Mr.  Moore, 
was  contained  in  the  report  of  Dr.  Elliott.  My  recollection  is,  that  Mr. 
Moore  did  not  come  to  me,  until  after  the  election  of  the  Moderator.  I 
informed  Dr.  Nott  that  at  a  certain  stage,  his  commission  had  been  pre- 
sented; and  he  inserted  my  information  in  the  wrong  place.  There  was, 
in  the  As.'sembly  of  1S3S,  some  action  on  the  exscinding  resolutions  of 
1837.  They  were  not  repealed.  There  was,  so  far  as  I  recollect,  no  ac- 
tion either  to  repeal  or  to  affirm  them,  except  in  what  are  commonly  called 
"The  Three  Acts" — acts  adopted  on  the  report  of  the  Committee  for  the 
Pacification  of  the  Church.  It  is  not  my  office  to  interpret  these  acts; 
they  are  here  in  court,  and  speak  for  themselves.  I  do  not  know  whe- 
ther they  treat  of  the  four  Synods  as  exscinded  Synods.  I  recollect 
merely,  in  a  general  way,  that  they  provide  for  the  incorporation  of  all 
the  Presbyterians  in  those  Synods  with  the  Church. 

Bt/  Mr.  Meredith.  -Some  days  the  roll  was  called,  and  some  it  was 
not.  At  the  end  of  the  sessions  of  the  Assembly,  it  was  called,  and  all 
who  were  absent  without  leave,  were  so  recorded.  Very  few — perhaps 
from  six  to  ten — had  obtained  leave  of  absence. 

By  Judge  Rogers.  I  cannot  say,  whether  the  motion  to  appoint  a 
Committee  of  Elections  was  made  while  Dr.  Mason  was  on  the  floor. 
Part  of  the  time,  I  was  attending  to  the  ordinary  business  of  the  Assem- 
bly, and,  at  other  times,  was  looking  towards  the  interruption. 

Re-examined  by  Mr.  Preston.  It  is  usual,  shortly  after  the  Assem- 
bly is  organized,  to  appoint  a  Standing  Committee  on  Leave  of  Absence, 
composed  of  four  or  five  members.  If  any  one  wishes  to  go  home,  he 
applies  to  them,  and,  if  proper,  they  give  him  leave;  and  report  the  fact, 
at  the  first  opportunity,  to  the  house.  I  think,  a  few  asked  leave  of  ab- 
sence: I  cannot  with  certainty  say  how  many,  for  I  have  nothing  to 
guide  my  recollection. 

Dr.  JVilliain  W.  Phillips — sworn,  with  the  uplifted  hand.  I  am  a 
clergyman  in  the  Presbyterian  Church,  of  the  Presbytery  of  New  York. 
I  was  a  commissioner  to  the  General  Assembly  of  1S38.  I  was  at  the 
church  in  Ranstead  Court  at  the  opening  of  the  Assembly,  on  the  17th  of 
May,  in  that  year.  I  occupied  the  pew  next  the  wall,  in  the  south-west 
corner  of  the  house,  at  the  bottom  of  the  stairs  which  lead  to  the  pulpit. 
After  the  religious  exercises,  the  Moderator  announced  that  the  Assembly 
would  meet;  and  came  down  from  the  pulpit,  and  opened  its  meeting 
with  prayer. 

The  Moderator  told  Dr.  Patton,  "Your  motion  is  out  of  order  at  this 
time."  He  presented  himself  to  the  Assembly,  and  addressed  the  Mo- 
derator, saying,  that  he  held  in  his  hand  some  resolutions,  which  he  wished 
to  offer  for  the  consideration  of  the  Assembly.  The  Moderator  said, 
''Your  motion  is  out  of  order  at  this  time  :  the  first  business  is  the  report 


TESTIMONY  FOR  THE  RESPONDENTS.  |67 

of  the  clerks  upon  the  roll."  Dn  Patton  said,  that  his  resolutions  related, 
or  had  reference,  to  the  roll.  The  Moderator  still  told  him,  he  was  out 
of  order.  He  appealed,  and  the  Moderator  pronounced  the  appeal  also 
out  of  order,  saying,>  there  was  no  house  to  appeal  to.  Then  he  took  his 
seat ;  and  the  clerk  proceeded  to  report  the  roll,  as  far  as  it  had  been  com- 
pleted. Dr.  Mason  said,  that  he  held  in  his  hand  the  commissions  of  cer- 
tain commissioners,  which  he  wished  added  to  the  roll.  The  Moderator 
asked  him,  if  he  had  presented  them  to  the  clerks  ;  and  whether  they 
came  from  Presbyteries  in  connexion  with  the  Presbyterian  Church  at 
,  the  close  of  the  sessions  of  the  Assembly  of  1837.  Dr.  Mason  replied, 
that  they  were  from  Presbyteries  within  the  bounds  of  the  Synods  of  Uti- 
ca,  Geneva,  Genesee,  and  the  Western  Reserve.  The  Moderator  told 
^im,  that,  at  that  time,  his  motion  was  out  of  order.  Dr.  Mason  said, 
that,  with  all  respect,  he  must  appeal  from  this  decision.  The  Moderator 
told  him,  he  was  out  of  order.  Mr.  Squier  then  addressed  the  Moderator. 
He  said,  that  his  commission  had  been  tendered  to  the  clerks,' and  refused; 
and  that  he  now  presented  it  there,  and  claimed  his  seat,  as  a  member  of 
the  Assembly.  The  Moderator  inquired  from  what  Presbytery  he  came. 
He  answered,  from  the  Presbytery  of  Geneva.  The  Moderator  replied, 
"  We  do  not  know  you,  sir."  Mr.  Cleaveland  then  rose,  and  commenced 
reading  a  paper.  The  contents  I  could  not  hear,  more  than  the  words, 
"  having  taken  advice  of  counsel  learned  in  the  law."  I  heard  him  say 
also,  that  it  was  necessary  to  organize  the  Assembly  in  the  shortest  time 
possible.  I  could  not  hear  all.  There  were  incessant  calls  to  order,  from 
the  Moderator  and  others;  and,  although  I  had  determined  to  be  still,  I 
found  myself  saying,  in  an  under  tone,  "I  hope  we  shall  have  order." 
Some  of  the  brethren  extended  their  hands,  and  said,  "Hush!  Hush!" 
I  could  see  Mr.  Cleaveland  from  where  I  stood  ;  and  I  heard  him  say, "I 
move  that  Dr.  Bem.an  take  the  chair."  I  then  heard  a  vote  of,  "Aye!" 
very  loud,  and  one  shrieking  voice  above  the  rest.  Immediately,  there 
was  a  movement  in  the  aisle,  and  Dr.  Beman  came  out  of  the  pew.  I 
heard  a  motion  made  for  the  appointment  of  clerks,  but  do  not  recollect 
that  I  heard  their  names.  I  heard  no  reversal  of  either  of  the  questions, 
and  no  negative  votes.  I  did  not  hear  the  motion  for  the  appointment  of 
Dr.  Fisher  as  Moderator.  I  did  not  know,  until  the  next  day,  that  he 
had  been  appointed  Moderator,  but  supposed  that  Dr.  Beman  was  presid- 
ing. I  think  I  did  hear  the  motion  to  adjourn.  I  heard  no  prayer.  I 
may  be  mistaken  in  regard  to  the  motion  for  adjournment,  for  a  proclama- 
tion of  the  adjournment  was  made  at  the  different  doors.  I  don't  know 
who  made  this  proclamation.  The  whole  of  these  movements  were  very 
rapid.  I  cannot  well  judge  how  long  a  time  they  consumed,  but  should 
say,  that  it  was  not  more  than  five  minutes,  from  the  time  Mr.  Cleave- 
land rose,  until  they  were  out  of  the  house.  It  may  have  been  longer, 
but  every  thing  was  done  as  rapidly  as  possible.  There  was  much  confu- 
sion in  the  house.  From  the  time  when  the  motion  was  made,  that  Dr. 
Beman  should  take  the  chair,  there  were  a  number  of  persons  standing, 
and  there  was  a  rush  into  the  aisle.  Most  of  these  remained  standing. 
My  impression  was,  that  I  heard  some  aj'es  from  the  gallery.  The  place 
that  I  occupied,  was,  I  think,  one  stej)  above  the  floor.  I  was  obliged  to 
stand,  it  being  painful  for  me  to  sit.  It  was  on  this  account,  that  I  chose 
that  situation,  which  IjDccupied  during  most  of  the  time  that  the  Genera! 


168 


PRESBYTERIAN  CHURCH  CASE, 


Assembly  was  in  session.  Those  who  retired  from  the  house,  went  out 
in  a  crowded  manner,  very  rapidly;  and  there  was  a  great  press,  whether 
by  members  of  the  body,  or  other  persons,  I  cannot  say.  There  was  a 
great  dust  round  the  doors  while  they  were  going  out,  and  afterwards. 
There  was  a  rising  in  the  gallery,  and  great  interest  manifested.  There 
may  have  been  a  noise  there;  indeed,  there  must  have  been,  from  the  per- 
sons who  occupied  it  rising  from  their  seats,  coming  forward  and  looking 
over.  I  suppose,  the  Old-school  party  occupied  the  seats  around  where  I 
was.  We  had  occupied  the  building  from  nine  o'clock  in  the  morning, 
for  prayer  and  consultation,  and  remained  in  the  seats  which  we  had  then 
taken,  uatil  the  closing  of  the  Assembly.  I  heard  no  votes  from  the  Old- 
school,  upon  any  of  the  questions  put  by  members  of  the  other  party. 
There  were  cries  of  order,  from  different  individuals  among  them,  as  well 
as  from  the  Moderator. 

Cross-examined  by  Mr.  Meredith. — I  was  ordained  by  the  Associate 
Reformed  Presbytery  of  New  York,  in  April  1818.  .  I  came  into  connex- 
ion with  the  General  Assembly  by  the  Union  of  1822,  but  still  remained 
in  that  Presbytery,  the  organization  of  which  was  not  changed.  I  was 
installed  as  Pastor  of  the  First  Presbyterian  Church  in  the  city  of  New 
York,  in  1826.  I  was  not  re-ordained,  on  entering  into  connexion  with 
the  General  Assembly.  The  Associate  Reformed  Church  was  a  Presby- 
terian Church — We  thought  it  as  much  so,  as  the  General  Assembly  itself. 
It  had  the  same  Confession  of  Faith,  and  the  same  Catechisms,  with  the 
Presbyterian  Church.  One  condition  of  the  union,  and  of  our  Presby- 
tery's coming  into  it,  was,  that  we  should  retain  our  distinct  organization 
as  a  Presbytery.  The  Forms  of  Government  of  the  two  Churches  were 
the  same  in  substance,  though  a  little  different  in  phraseology  ;  but  the 
Westminster  Confession  of  Faith  and  Catechisms  are  the  standards  of 
both.  I  still  use  the  form  I  always  have,  in  the  admission  of  members, 
and  in  baptism.  I  suppose  these  forms  do  differ  from  those  of  the  Gene- 
ral Assembly.  There  is  a  directory  in  the  book  of  the  Associate  Re- 
formed Church.  I  did  not  continue  to  use  this  directory.  I  have  used 
the  directory  of  the  General  Assembly  since  I  was  installed.  I  have  not 
changed  my  doctrinal  views  at  all,  but  continue  to  refer  to  the  same  Con- 
fession of  Faith,  and  Catechisms,  because  they  are  the  same  in  both  deno- 
minations. 

Mr.  Meredith,  (handing  to  the  witness  the  book  of  the  Associate  Re- 
formed Church.)  Look  if  you  please,  if  that  is  the  act  of  adoption  of  the 
Confession  of  Faith,  by  the  Associate  Reformed  Church. 

Dr.  Phillips.  There  was  subsequently,  I  think,  an  alteration  in  that 
part  which  relates  to  the  civil  magistrates.  I  think  this  is  not  the  Con- 
fession now  used  ;  but  the  doctrines  are  the  same :  indeed  the  Confession 
is  the  same,  with  the  difference  mentioned.  I  am  not  prepared  to  an- 
swer whether  this  is  the  act  of  adoption.  The  Confession  was  subse- 
quently changed  in  the  particular  which  I  have  noticed :  perhaps  there 
was  another  act  of  adoption  at  that  time. 

Mr.  Stacy  G.  Potts — sworn.  I  reside  in  Trenton,  New  Jersey.  I 
happened  to  be  in  Philadelphia,  on  the  day  of  the  opening  of  the  Assem- 
bly, in  May,  1S38.  I  attended  at  the  church  in  Ranstead  Court.  Hav- 
ing arrived  that  morning,  1  went  directly  from  the  steamboat  to  the 
church,  about  half  past  ten  o'clock.     My  seat  was  in  one  of  the  small 


TESTIMONY  FOR  THE  RESPONDENTS.  yQQ 

pews  toward  Fourth-street.  I  entered,  I  think,  at  the  east  door,  went  a 
little  beyond  the  centre  of  the  church,  and  sat  down  at  some  distance 
from  the  Moderator's  chair.  Until  the  close  of  the  religious  exercises, 
every  thing  was  quiet;  and  then  the  Moderator  took  his  place  on  the 
desk  below  the  pulpit,  and  proceeded  to  organize  the  Assembly.  At 
this  time,  a  gentleman,  whom  I  did  not  know,  rose  and  made  some  state- 
ment; but  I  did  not  hear  what  he  said,  for,  at  that  moment,  the  people 
around  rose,  and  there  was  a  little  confusion  and  noise  about  me.  This  pas- 
sed over,  the  gentleman  sat  down,  and  I  saw  the  clerk,  as  I  supposed,  and 
heard  him  call  over  the  roll  of  the  Assembly.  Immediately  after  he 
had  called  it,  there  was  another  interruption.  Some  one,  whom  I  did 
not  know,  rose,  and  the  noise  commenced  again.  From  that  time,  the 
confusion  around  me  increased,  persons  went  out  into  the  aisle,  and  press 
ed  near  the  place  where  these  proceedings  were  going  on.  I  was  unable, 
sitting  in  the  pew,  to  see  any  thing,  and  finding  that  the  scene  was  one 
of  interest,  rose  up,  but  just  then  the  persons  around  began  to  get  upon 
the  seats  of  the  pews,  and  still  entirely  intercepted  my  view.  I  made 
.no  further  effort  to  see,  but  remained  standing  in  my  place.  The  first 
thing  that  I  distinctly  understood,  was  a  vote  of  aye,  very  loud,  and  ap- 
parently coming  from  many  parts  of  the  house.  Some  about  me  said 
"Aye!"  very  loudly.  I  thought  some  voices  from  the  galleries,  which  I 
supposed  were  female  voices,  mingled  with  the  rest.  My  attention  was 
drawn  to  the  galleries,  because  I  had  noticed  that  ladies  exclusively 
sat  there.  They  were  quiet  when  I  looked  up,  but  manifested  a  visible 
interest  in  the  proceeding,  and  there  was  a  slight  movement  of  their 
hands.  I  did  not  know  at  the  moment  wdiat  this  "  Aye!"  was  for.  It 
was  impossible  to  hear,  where  I  stood,  a  syllable  spoken  in  ordinary  lan- 
guage. I  did  not  know  one  person  in  the  vicinity  of  the  place  where  I 
stood,  and  cannot  say  that  any  one  who  was  not  a  member  of  the  Assem- 
bly voted,  aye.  Two  or  three  votes  of  this  kind  were  all  that  I  distinct- 
ly heard.  There  were  two  or  three  ayes  at  short  intervals,  but  I  heard 
no  question  proposed  the  whole  time.  I  think  that,  on  one  occasion,  I 
heard  a  few  scattering  noes — whether  on  the  first,  or  one  of  the  subse- 
quent votes,  I  cannot  tell.  The  scene  took  place,  I  think,  in  about  the 
centre  of  the  church.  I  was  ii>  one  of  the  wall  pews,  a  little  further 
towards  Market  street.  The  ends  of  those  pews  are  against  the  wall. 
The  next  scene  which  attracted  my  attention,  was  a  general  movement 
towards  the  doors,  and  in  a  very  short  time  a  mass  of  persons  had  gone  out. 
Immediately,  a  person  presented  himself  at  one  of  the  doors,  and  made 
proclamation,  tiiat  the  General  Assembly  had  adjourned.  He  then  proceed- 
ed to  the  second  door,  and  there  made  the  same  proclamation.  I  think  I 
saw  the  person  at  one  of  the  doors.  At  the  third  door  also  the  same  procla- 
mation was  made,  and  the  person  who  made  it  not  doing  it  the  first  time 
to  his  satisfaction,  being  a  little  hoarse,  cleared  his  throat  and  repeated 
it  very  loudly.     I  heard  no  motion  made  in  regard  to  adjournment. 

Cross-examined.     I  am  a  member  of  an  Old-school  church  in  Tren- 
ton. 

Court  adjourned. 

22 


170  PRESBYTERIAN  CHURCH  CASE. 


WEDNESDAY  AFTERNOON— 4  o'clock. 

Br.  William  Harris — sivoryi.  I  attended  in  the  church  on  Ranstead 
Court,  on  the  ^.  7th  of  May,  1S3S,  as  a  spectator.  I  stood  in  the  west  aisle, 
near  the  south-west  corner  of  the  church,  and  was  immediately  in  front 
of  Dr.  PhilHps,  and  near  him.  I  heard  the  Moderator  call  the  house  to 
order,  and  state  that  the  first  business  was  the  reading  of  the  roll.  He 
directed  the  clerk  to  read  the  roll,  but  the  clerk  did  not  begin  immedi- 
ately, and  a  gentleman  rose,  saying  that  he  had  a  resolution  to  offer.  He 
premised  his  remarks  by  "Mr.  Moderator."  I  was  not  personally  ac- 
quainted with  the  gentleman,  but  learned  from  a  by-stander,  that  it  was 
Dr.  Patton.  The  Moderator  said,  "Sir,  you  are  out  of  order  at  present.'^ 
The  gentleman  said,  '•!  appeal  from  your  jadgment,  Sir."  The  Modera- 
tor decided  that  the  appeal  also  was  out  of  order,  and  Dr.  Patton  sat  down, 
and  the  clerk  proceeded  to  read  the  roll.  When  he  had  finished,  another 
gentleman  rose,  who,  as  I  learned  from  a  by-stander.  was  Dr.  Mason.  He 
said,  that  he  had  some  commissions  to  offer,  which  had  been  presented  to 
the  clerks  and  refused.  Dr.  Elliott  asked  him,  where  the  commissions  were 
from.  He  answered,  I  think,  that  they  were  from  the  Synods  of  Utica, 
Geneva,  Genesee,  and  the  Western  Reserve.  Dr.  Elliott  then  said,  "Sir, 
you  are  out  of  order  at  present."  Dr.  Mason  replied,  "Mr.  Moderator, 
with  due  respect,  I  must  appeal."  The  Moderator  declared  the  appeal 
also  out  of  order.  A  third  person,  who,  I  learned,  was  Mr.  Squier,  then 
rose.  He  said  he  had  a  commission  to  offer  from  the  Presbytery  of  Ge- 
neva, which  had  been  rejected  by  the  clerks.  The  Moderator  asked  him, 
whether  that  Presbytery  was  in  the  Synod  of  Geneva.  Mr.  Squier  an- 
swered that  it  was.  The  Moderator  replied,  "  Sir,  we  do  not  know  you." 
Afterwards  a  fourth  gentleman  arose,  whom  I  knew  to  be  Mr.  Cleaveland: 
I  had  seen  him  the  year  before  in  the  General  Assembly.  He  was  in  a 
diagonal  direction  from  me,  and  so  far  distant,  that  I  could  not  hear  all  he 
said;  but  I  heard  distinctly  the  words,  "by  the  advice  of  counsel,  learned 
in  the  law,"  and  "about  to  proceed  to  organize  the  Assembly."  After  a 
few  remarks,  he  began  to  read.  The  Moderator  called  him  to  order,  but 
he  continued  to  read.  The  Moderator  called  him  to  order  three  or  four 
times,  but  he  proceeded.  Dr.  Elliott  called  to  order  again,  rapped  on  the 
desk  with  his  hammer,  and  then  sat  down.  Mr.  Cleaveland  moved  that 
Dr.  Beman,  or  Beecher,  should  take  the  chair,  and  said,  "Those  who  are 
in  favour  will  say,  aye."  There  was  a  general  "  Aye!"  in  the  part  of  the 
house  where  Mr.  Cleaveland  was.  After  that  I  did  not  distinctly  hear 
any  motion,  but  the  words,  "Those  who  are  in  favour  will  say,  aye,"  and 
then  the  ayes  very  distinctly.  I  did  not  hear  Mr.  Cleaveland's  ques- 
tion, or  any  other,  reversed.  I  did  not  hear  any  negative  votes.  It  was 
a  confused,  tumultuous  scene.  The  tumult  arose  from  the  cries  of  "Aye!" 
in  an  unusually  loud  voice,  from  persons  standing  on  the  seats,  and  from 
the  whole  Assembly  being  in  disorder.  Nearly  all  the  Old-school  mem- 
bers were  sitting  in  their  seats:  there  were  a  few  standing  up  on  either 
side  of  the  pulpit,  near  the  wall;  but  all  those  in  the  main  body  of  the 
house  were  seated.  They  did  not  join  in  the  votes.  There  were  some 
few  around  me,  who  said,  in  an  under  tone,  "  I  hope  we  shall  have  order," 
and,  "What  a  shame!"  or  something  of  that  kind. 


TESTIMONY  FOR  THE  RESPONDENTS,  ^71 

Cross-examined  by  Mr.  Randall.  I  am  an  elder  in  the  Tenth  Pres- 
byterian Church,  in  this  city — Mr.  Boardman's  church. 

Rev.  Dr.  Satniiel  B.  Wilson — sworn,  ivilh  the  uplifted  hand.  I  at- 
tended the  Assembly  of  1838,  as  a  commissioner.  I  was  in  the  church 
of  Ranstead  Court,  on  the  day,  and  at  the  time,  of  the  organization  of  the 
Assembly.  I  sat  on  the  front  range  of  seats,  on  the  west  side  of  the  mid- 
dle aisle.  Sitting,  as  I  was,  with  my  face  towards  the  Moderator,  Mr. 
Cleaveland  was  behind  me,  and  I  did  not  see  him.  I  heard  a  gentleman, 
whom  I  afterwards  understood  to  be  Mr.  Cleaveland,  either  speaking  or 
reading.  When  he  commenced,  I  could  hear,  pretty  distinctly,  some  of 
his  first  words.  Very  soon  the  Moderator  called  him  to  order.  He  per- 
severed ;  and  the  call  to  order  was  repeated,  perhaps  more  than  once.  A 
Hiember,  who  sat  near  me,  rose,  and  also  called  him  to  order.  That  pro- 
duced a  confusion,  and  prevented  me  from  hearing  distinctly,  and  in  con- 
tinuity, all  that  was  uttered  by  Mr.  Cleaveland.  It  is,  perhaps,  proper 
that  1  should  explain,  now,  another  reason  why  I  did  not  hear.  At  times, 
after  the  calls  to  order,  Mr.  Cleaveland  having  persevered,  there  was  a  con- 
siderable commotion  in  that  part  of  the  house  where  he  stood.  Some 
were  standing  on  the  floor,  and  some  higher;  altogether,  they  made  a 
good  deal  of  noise.  I  do  not  think  I  can  state  any  distinct  proposition 
made  by  Mr.  Cleaveland.  There  was  a  kind  of  confused  statement,  but  I 
am  not  able  to  say  that  any  thing  distinct  and  definite,  so  far  as  I  heard, 
was  brought  before  my  mind.  It  appeared,  however,  from  what  followed, 
that  something  or  other  was  proposed,  for  I  heard  a  distinct  vote — a  num- 
ber of  unusually  loud  ayes,  besides  the  one  particularl}^  alluded  to  by 
others.  I  heard  no  reversal  of  the  question;  and  do  not  remember  any 
voice  saying,  "  No !"  I  cannot  say,  that  I  endeavoured  to  hear  Mr,  Cleave  • 
land,  though,  if  I  had,  I  am  confident  I  could  not  have  heard. 

Mr  Hubbell.     Why  did  you  not  vote? 

Mr.  Meredith.  We  object  to  the  question.  The  witness's  reasons 
for  not  voting  are  of  no  importance. 

Mr.  Hubbell.  On  what  grounds  do  you  object?  I  should  like  to  ar- 
gue the  point. 

Judge  Rogers.  Let  us  hear  the  grounds  of  your  objection,  Mr.  Mere- 
dith. 

Mr.  Meredith.  The  question  asks  for  the  witness's  motives  in  a  par- 
ticular case,  which  I  suppose  are  not  evidence. 

Judge  Rogers.  If  the  object  is  to  show  the  fact  that  the  witness  did 
not  hear,  the  question  is  competent. 

Mr.  Hubbell.  I  asked  the  witness  whether  he  had  voted.  He  said 
*'No."  I  now  ask  him  why  he  did  not  vote.  The  point  in  dispute  is, 
whether  we  voted  or  not.  They  say,  that  being  silent,  we  must  be  con- 
sidered as  acquiescing,  as  voting  in  the  affirmative.  Now  it  is  certainly- 
competent  for  us  to  bring  up  every  one  of  the  Old-school  party,  to  show 
that  they  did  not  intend  to  acquiesce;  to  exclude  this  conclusion  of  our 
opponents.  We  desire  to  prove  that  these  individuals  did  not  intend 
either  to  vote  affirmatively,  or  to  cast  away  their  votes;  that  the  reason  of 
their  silence  was,  that  they  considered  the  whole  proceeding  irregular 
and  abnormal. 

Mr.  Ingersoll.  There  may  have  been  a  moral  or  physical  inability 
to  vote — some  circumstances  that  prevented  the  witness's  voting.     This, 


172  PRESBYTERIAN  CHURCH  CASE. 

perhaps,  is  the  true  issue.  If  there  was  either  a  bodily  or  mental  inca- 
pacity, or  if  he  refrained  from  voting  because  the  question  was  not  heard, 
he  cannot  be  supposed  to  have  assented  to  the  proceedini^.  Again,  a 
member  who  does  not  vote  is  sometimes  recorded  as  a  non  liquet.  We 
wish  to  ascertain  whether  this  witness  is  to  be  treated  as  a  non  liquet. 
We  ask  for  the  reason  of  his  not  voting.  It  may  be  that  it  was  owing  to 
some  sort  of  incapacity. 

Mr.  Randall.  If  the  witness  be  questioned  merely  as  to  his  ability, 
or  as  to  any  obstruction  of  his  hearing,  we  make  no  objection. 

Judge  Rogers.  You  may  ask,  whether  tJie  witness's  not  voting  was 
because  no  opportunity  was  given,  or  because  he  did  not  wish  to  vote. 

Mr.  Preston.  I  should  be  happy  to  understand  the  full  extent  of 
your  Honour's  decision.  The  main  point  on  which  our  opponents  rely, 
is  the  intendment  of  law,  that  persons  who  are  silent  vote  in  a  particular 
way.  This  intendment  must  prevail,  unless  we  show  the  contrary,  by 
demonstrating  the  exact  state  of  the  facts. 

Judge  Rogers.  I  do  not  think  that  that  intendment  of  law  can  be  re- 
butted. If  a  motion  be  put  and  there  are  ten  ayes,  and  but  one  no,  it  is 
carried. 

Mr.  Preston.  Perhaps  the  parties  can  show  that  the  motion  was  not 
put  either  in  fact  or  in  law. 

Judge  Rogers.     I  do  not  think  that  is  the  question  here. 

Mr.  Ingersoll.  I  will  put  the  inquiry  in  this  form:  Were  you  pre- 
vented by  any  circumstance  from  voting? 

Dr.  Wilson.  I  could  not  have  voted,  for  no  enunciation  of  a  question 
reached  my  ears.      I  believe  my  hearing  is  as  good  as  usual. 

Mr.  Ingersoll.  I  now  propose  to  ask,  whether,  if  he  had  heard  a  mo- 
tion made — not  by  the  chair,  but  by  some  person  out  of  the  chair — he 
would  have  voted  ? 

Mr.  Meredith.  We  object  to  the  question  as  presenting  an  entirely 
suppositious  case. 

Judge  Rogers.  You  must  confine  the  inquir}''  to  what  was  actually 
done. 

Examination  continued.  My  back  was  towards  Mr.  Cleaveland, 
when  I  first  heard  him  speak,  but  I  naturally  turned,  while  he  was  speak- 
ing, to  get  a  view  of  him,  and  hear  what  was  said.  When  I  turned,  I 
think  he  had  a  paper  in  his  hand.  I  thought  he  did  not  hold  it  very 
firmly,  and,  partly  from  his  agitation,  and  partly  from  the  noise,  I  had 
but  a  confused  idea  of  what  he  said.  I  was  near  the  division  line  between 
the  two  ranges  of  pews.  The  confusion  and  tumult,  after  this,  increased, 
particularly  in  the  back  part  of  the  house.  I  can't  sav  that  I  heard  any 
thing  more,  distinctly,  the  confusion  was  so  great.  I  can  say  only,  that 
there  was  some  kind  of  voting,  but  I  don't  know  upon  what  questions: 
as  to  this,  I  was  entirely  in  the  dark.  I  didn't  know  that  Dr.  Fisher  had 
been  chosen  Moderator,  until  it  was  reported  next  day.  There  was  a 
rush  of  some  persons  into  the  aisle,  after  Mr.  Cleaveland  commenced. 
The  adjournment  took  place  with  continued  noise  and  tumult:  the  noise, 
for  a  little  while,  was  considerably  increased,  by  persons  descending  from 
the  galleries,  as  those  who  formed  the  religious  body,  in  the  First  Church, 
passed  out  of  the  doors  below. 

Cross-examined  by  Mr.  Meredith. — I  am  a  minister,  and  was  a  mem- 


TESTIMONY  FOR  THE  RESPONDENTS.  I73 

ber  of  the  Assembly  of  183vS.  I  am  considered  as  one  of  the  Old-school 
party. 

Rev.  Dr.  Samuel  Miller — sworn,  ivilh  the  uplifted  hand. — I  was 
present  at  the  organization  of  the  Assembly  of  1838,  but  was  not  a  com- 
missioner. I  sat  on  the  south-west  side  of  the  church,  about  twenty,  or 
twenty-five  feet  left  of  the  Moderator.  I  was  standing  on  the  floor. 
Mr.  Cleaveland  rose,  and  held  a  paper  in  his  hand,  which  he  seemed  to 
be  attempting  to  read.  There  were  cries  of  order.  He  began  in  a  loud 
tone,  but  seemed  to  experience  a  great  deal  of  difficulty  in  proceeding. 
The  contents  of  the  paper,  so  far  as  I  heard  them,  were,  that  they  had 
been  advised  by  counsel  learned  in  the  law,  that  at  that  time  and  place, 
they  must  organize  a  new  body,  and  that  they  should  proceed,  in  as  few 
words,  and  as  short  a  time,  with  as  little  discourtesy  as  possible,  to  do  so; 
and  he  offered  a  resolution,  inviting  Dr.  Beman  to  take  the  chair.  That 
is  the  amount  of  what  I  heard.  Then  there  was  a  great  deal  of  tumult 
and  disorder,  and  calls  to  order.  What  Mr.  Cleaveland  said  appeared  to 
be  by  no  means  distinctly  uttered.  With  the  exception  of  a  few  calls  to 
order,  all  the  tumult  was  in  that  part  of  the  house,  where  Mr.  Cleaveland 
was.  I  heard  no  vocal  utterance  in  the  other  part,  excepting  the  calls  to 
order.  The  nays  were  not  called  for  on  either  of  Mr.  Cleaveland's  mo- 
tions. After  moving,  v\'ithout  reversing  the  question,  that  Dr.  Beman 
should  take  the  chair,  he  made,  I  think,  a  similar  motion,  also  without  re- 
versing it,  that  Dr.  Mason  and  Mr.  Gilbert  should  be  clerks.  After  these 
resolutions  had  passed — that  is,  after  the  ayes,  which  came  principally 
from  that  part  of  the  house,  had  been  called  for.  Dr.  Beman  immediately 
stepped  out  into  the  aisle,  went  down  the  aisle,  and  appeared  to  place 
himself  in  the  situation  of  a  presiding  officer.  The  whole  body  of  those 
engaged  in  these  proceedings  moved  down  the  aisle,  near  the  door  oppo- 
site to  the  pulpit.  I  afterwards  beared  a  confused  murmur,  but  no  dis- 
tinct articulate  sound:  what  words  were  spoken,  or  with  what  result,  after 
Dr.  Beman  took  the  chair,  I  am  wholly  unable  to  testify,  from  my  own 
knowledge.  It  is  not  easy  to  define,  exactly,  the  limits  of  the  space  oc- 
cupied by  the  Old-school  party;  but  the  great  body  of  them,  occupied  the 
part  where  I  stood,  the  corresponding  part,  on  the  right  side  of  the  Mode- 
rator, and  the  front  pews.  I  think  I  was  standing  in  the  midst  of  that 
body.  I  heard  no  vote  from  this  part  of  the  house.  So  far  as  I  could 
see  and  hear,  not  a  single  Old-school  man,  in  the  whole  house,  voted.  I 
heard  no  negative  votes  on  any  of  the  motions.  When  the  vote  "  Aye!" 
was  given,  there  was  a  character  about  it,  that  convinced  me,  that  a  num- 
ber in  the  gallery  had  voted.  There  were  sharp,  shrill  cries,  which  I 
could  not  believe  came  from  considerate,  dignified,  and  serious  men.  I 
took  for  granted  that  they  came  from  the  gallery,  and  from  the  boys  about. 
This  however,  was  my  own  inference.  There  was  certainly  a  character 
about  the  ayes,  which  I  had  been  altogether  unaccustomed  to.  It  is  diffi- 
cult to  make  an  estimate  of  the  length  of  tim.e  between  Mr.  Cleaveland's 
rising,  and  the  adjournment  of  those  who  left  the  house,  the  whole  affair 
was  so  thrilling;  but  I  suppose  it  was  not  more  than  five  or  six  minutes. 
I  did  not  know  that  Dr.  Fisher  was  Moderator  until  the  next  day.  I 
was  not  at  all  sensible  of  that  part  of  the  operation. 

Examined  by  Mr.  Preston.  I  cannot  say  with  confidence,  how  often 
the  Assembly  has  been  held  in  that  church;  I  should  think  ten  or  fifteen 


174  PRESBYTERIAN  CHURCH  CASE. 

times;  but  this  is  only  a  rude  guess.  I  think  I  have  been  a  member  of 
the  Assembly,  in  that  house,  half-a-dozen  times.  The  fixtures  are  always 
in  the  same  places.  They  are  put  up  I  suppose  by  the  janitor,  at  the 
direction  and  the  expense  of  the  General  Assembly.  I  know  the  janitor 
was  always  considered  the  proper  man  to  be  called  upon,  to  get  a  chair 
for  any  individual  that  needed  one,  and  he  always  did  it. 

Cross-examined  by  Mr.  Meredith.  I  have  no  pastoral  charge,  but 
am  a  professor  in  the  Theological  Seminary  at  Princeton.  I  remained  the 
whole  time  in  the  same  place.  I  do  not  recollect  crossing  over  to  speak 
to  the  Moderator,  and  am  persuaded  that  I  did  not.  I  am  entirely  confi- 
dent, that  I  did  not  pass  hastily  to  the  Moderator,  and  ask  him  not  to  per- 
mit them  to  be  organized:  no  such  thing  occurred. 

Dr.  Wilson — re-called.  Dr.  Elliott's  reply  to  Dr.  Mason,  when  he 
made  his  motion,  was,  "  It  is  not  in  order  at  this  time."  I  think  those 
were  the  very  words. 

Cross-examined  by  Mr.  Randall.  As  soon  as  the  Committee  of 
Commissions  had  made  their  report,  the  Moderator  stated,  that  if  any 
commissioners  had  not  had  an  opportunity  of  presenting  their  commis- 
sions, now  was  the  time  to  present  them.  It  was  immediately  before  Dr. 
Mason  rose,  that  he  had  made  this  announcement.  He  had  called  for 
commissions  that  had  not  been  presented,  but  Dr.  Mason,  in  his  explana- 
tion, said,  that  those  he  offered  had  been  rejected  by  the  Committee  of 
Commissions.  The  kin-d  which  he  offered  was  not  that  which  was  called 
for. 

By  Mr.  Meredith.  The  Moderator  called  for  commissions  that  had 
not  been  presented.  I  will  not  be  positive  that  he  did  not  say,  those  that 
had  not  been  enrolled.  I  believe,  that  by  this,  the  same  thing  would  have 
been  understood.  I  cannot  be  sure,  but  I  think  his  words  were,  those  that 
had  not  been  presented  to  the  clerks,  or  to  the  Committee  of  Commissions. 
I  was  not  a  member  of  the  committee  to  prepare  a  minute  of  these  trans- 
actions. I  presume  that  I  approved  of  the  minute,  but  I  have  no  distinct 
recollection  of  its  phraseology. 

Rev.  Isaac  V.  Brown — sworn,  with  the  uplifted  hand.  I  am  a  cler- 
gyman of  the  Presbyterian  Church.  I  was  not  a  commissioner  to  the 
General  Assembly  of  1S3S,  but  I  attended  at  its  organization-  I  was  on 
the  north-east  side  of  the  house,  in  the  rear  of  Mr.  Cleaveland,  and 
within  about  five  feet  of  that  gentleman,  as  nearly  as  I  could  estimate. 
There  was  one  pew  between  his  and  mine.  Dr.  Beecher  was  at  the  end 
of  the  pew  between  us,  and  Mr.  Cleaveland  sat  next  in  front  of  him,  about 
half-a-dozen  pews  from  the  Moderator.  Mr.  Cleaveland  rose  with  a  paper 
in  his  hand.  At  his  first  rising,  his  face  was  towards  the  Moderator,  and 
his  back  to  me.  I  did  not  hear  him  say,  "Mr.  Moderator."  When  he 
had  commenced  reading,  he  turned  a  little  round  from  the  chair,  as  if 
addressing  the  persons  to  his  right,  and  thus  gave  me  an  opportunity  to 
see  the  hand-writing  of  the  paper,  and  to  hear,  distinctly,  what  he  uttered. 
I  can  recollect,  perfectly,  the  main  topics  of  his  discourse,  and  nearly  in 
their  order.  He  commenced  by  declaring,  we  are  about  to  form  a  new 
body;  he  expressed  an  apology  for  the  interruption,  and  wished  not  to  be 
considered  discourteous,  as  they  would  do  it  "in  the  fewest  words,  and 
the  shortest  time  possible."  These  are  his  own  words.  He  declared, 
that  what  they  were  about  to  do,  was  in  pursuance  of  the  advice  of  counsel 


TESTIMONY  FOR  THE  RESPONDENTS.  I75 

eminent,  or  learned,  or  both — one  or  the  other  form  of  expression  he  cer- 
tainly used.  He  stated,  that  their  choosing  that  time  and  place,  was  in 
order  to  obtain  certain  legal  advantages.  These  were  his  words  as  he 
uttered  them,  and  that  is  about  the  substance  of  what  I  recollect.  Then 
immediately,  and  hastily,  he  moved  that  Dr.  Beman  should  take  the  chair, 
and  instantly  put  the  question.  There  was  no  reversal  of  the  ques- 
tion: I  am  very  confident  I  heard  nothing  like  it.  There  was  not  time, 
between  the  first  and  second  motion,  to  admit  of  it.  When  he  moved 
that  Dr.  Beman  should  take  the  chair,  there  was  a  very  vociferous 
response  of  "Aye!"  in  certain  parts  of  the  house.  I  think  there  were 
voices  from  the  gallery,  and  voices  that  clearly  manifested,  that  they  did 
not  belong  to  members  of  the  General  Assembly.  They  were  shrill  and 
•squeaking,  more  like  female  voices,  and  came  from  the  north-west  end  of 
the  house,  in  the  rear  of  the  body.  There  was  a  considerable  volley  from 
that  quarter,  and  some  were  very  like  female  voices,  or,  if  not  so,  came 
from  minor  youth.  In  the  rear,  there  was  a  very  promiscuous  assembly, 
of  all  sexes,  and  all  ages.  There  were,  however,  a  few  gentlemen,  occu- 
pying the  seats  immediately  in  my  rear,  whose  faces  I  did  not  know.  I 
heard  no  negative  voices  at  all.  After  this  a  motion  was  made  for  the 
appointment  of  clerks.     I  heard   the  name  of  Mr.  E.  W.  Gilbert,  and 

Dr. ,  the  name  I  could  not  distinguish,  nor  who  made  the  motion, 

owing  to  the  confusion  at  the  moment,  producing  some  embarrassment; 
but  I  supposed  it  was  made  by  the  same  man.  That  motion  was  put  and 
carried  in  the  same  manner,  but  without  reversal.  Immediately  after, 
there  was  a  sudden  call  or  explanation,  the  words  of  which  I  do  not 
remember,  but  the  object  of  it  v^^as,  to  produce  a  movement  among  those 
who  acted  in  the  scene,  towards  the  north-western,  or  the  western 
part  of  the  house.  Immediately,  there  was  a  very  hasty  rush  towards 
that  part.  There  was  an  assembly  thus  created  very  speedily,  at 
a  distance  from  the  focus  of  their  previous  operations,  of  about 
twenty-five  feet.  I  endeavoured  particularly  to  ascertain  the  distance, 
and,  without  success,  what  they  were  doing.  I  rose  up,  and  got  on  the 
seat,  to  discover  if  possible,  what  the  seceding  members  were  about.  I 
listened  as  closely  as  I  could,  but  the  noise  and  tumult  were  such,  as  to 
prevent  my  hearing  any  thing  at  all.  In  a  very  few  minutes,  there  was 
a  loud  outcry,  first  near  the  central  point  of  the  body,  again  at  the  out- 
skirts, and  near  the  east  door — a  notice,  that  the  body  which  had  recently 
been  organized,  were  about  retiring  to  another  church — Mr.  Barnes's 
church  I  think:  I  don't  know  the  style  it  goes  by  in  this  city.  I  heard 
Dr.  Mason's  motion  in  regard  to  the  documents  which  he  held  in  his 
hand.  Dr.  Elliott  replied  to  him,  "You  are  out  of  order  at  this  time," 
distinctly  and  emphatically:  these  were  the  very  words. 

Cross-examined  by  Mr.  Meredith.  I  have  no  pastoral  charge  at  pre- 
sent. I  reside  at  Lawrenceville,  in  New  Jersey.  I  am  estimated  a  mem- 
ber of  the  Old-school  party. 

Rev.  Nathan  G.  White — sivorn,  ivith  the  uplifted  hand.  I 
was  a  delegate  to  the  General  Assembly  of  1S3S.  I  am  a  clergyman 
settled  in  M'Connelsburgh,  in  Carlisle  Presbytery,  of  which  I  am  a 
member.  I  attended  at  the  organization  of  the  General  Assembly, 
on  the  17th  of  May.  I  was  in  the  eastern  part  of  the  church,  about  four 
pews  from  the  Mod^ator,  on  the  eastern  side  of  the  middle  aisle,  and 


J76  PRESBYTERIAN  CHURCH  CASE. 

was  next  the  door  of  the  pew  openin<2;  into  that  aisle,  Mr.  Cleaveland 
was  two  pews  behind  me.  He  rose  with  a  paper  in  his  hand,  and  after 
stating  something,  read,  or  appeared  to  read,  what  was  in  the  paper.  I 
supposed  him  to  have  uttered  about  one  sentence,  before  I  heard  what  he 
was  saying:  about  a  moment, of  time  had  elapsed.  He  then  stated,  "as 
we  have  been  advised  by  counsel  learned  in  the  law,  that  a  proper  and 
constitutional  General  Assembly,  cannot  be  organized  except  at  this  time 
and  in  this  place,  or  house." — This  was  the  only  sentence  which  I  heard 
continuously.  Then  he  made  something  like  an  apology,  and  used  the 
words  "  discourteous,"  and  ''  short  time;"  but  at  that  moment  there  was 
considerable  noise.  I  thought  that,  perhaps  he  did  not  read  all  that  was 
on  the  paper,  because,  although  he  spoke  words  loud  enough  for  me  to 
hear,  they  were  not  continuously  uttered,  so  as  to  form  a  sentence.  At 
this  time,  he  was  turning  his  face  away  towards  the  middle  aisle,  and 
therefore  away  from  me.  He  then  made  a  motion  that  Dr.  Beman  should 
take  the  chair,  and  just  as  he  made  it,  a  number  of  persons  near  and 
around  him  arose,  and,  immediately,  I  heard  a  very  loud  "  Aye!"  I  did 
not  hear  the  motion  for  Dr.  Beman  to  take  the  chair  reversed.  I  heard 
no  negative  votes  on  it.  Immediately  after  the  loud  "  Aye!"  the  names 
of  Mr.  Gilbert  and  Dr.  Mason  were  mentioned  for  clerks,  the  same  person 
putting  the  motion,  to  which  there  was  a  very  loud  response  of  "  Aye!" 
This  motion  was  not  reversed.  When  I  say  it  was  not,  I  mean,  I  heard 
no  reversal.  Then,  for  a  moment  or  so,  there  was  a  low  murmuring  of 
voices,  after  which  I  heard  again,  a  very  loud  "  Aye!"  Soon  after  this, 
those  persons  who  were  standing  in  the  aisle,  and  on  the  seats  of  the 
pews,  and  even  on  the  backs  of  the  pews,  as  some  of  them  were,  com- 
menced moving  towards  the  door  and  out  of  the  house,  in  a  very  hurried 
manner.  When,  as  I  suppose,  about  one  third  or  one  half  of  these  had 
gone  out,  I  heard  a  loud  cry  at  the  door,  announcing,  that  the  General 
Assembly  of  the  Presbyterian  Church  had  adjourned,  to  meet  in  the  First 
Presbyterian  Church,  on  Washington  Square.  This  was  repeated  by  a 
middle-aged  looking  man,  standing  in  the  lobby,  and  was  also  repeated  by 
him,  or  some  one  else,  at  the  other  doors.  The  cries  of  "  Aye!"  came 
principally  from  persons  standing  in  the  immediate  neighbourhood  of 
Mr.  Cleaveland,  and  also  from  some  standing  in  the  north-western  direc- 
tion from  me.  I  had  now  turned  round,  with  my  face  toward  Mr.  Cleave- 
land. I  cannot  say  certainly  that  any  of  the  ayes  were  from  the  gallery. 
There  was  noise  in  the  gallery  on  the  west  side  of  the  house.  I  heard 
Dr.  Patton  make  a  motion;  that  is,  he  held  certain  papers  in  his  hand,  and 
said  he  wished  to  offer  a  resolution.  Dr.  Elliott  said,  that  he  was  out  of 
order,  because  the  first  business  was  to  hear  the  roll,  as  it  had  been  made 
out  by  the  clerks.  Dr.  Patton  replied,  that  his  motion  had  reference  to 
the  roll,  and  that  it  could  be  put  in  a  moment,  as  he  wished  the  question 
to  be  taken  without  debate.  The  Moderator  decided  that  he  was  out  of 
order.  Then  Dr.  Patton  said  that  he  must  appeal  from  the  decision.  The 
Moderator  said  that  the  appeal  also  was  out  of  order,  as  there  was  no 
house,  and  as  the  first  business  was  the  report  of  the  clerks  upon  the  roll. 
He  then  directed  Mr.  Krebs  to  proceed,  and  Mr.  Krebs  reported  his  roll. 
As  soon  as  he  had  done  with  the  report,  the  Moderator  stated,  that  if 
there  were  any  commissioners  from  churches  within  our  bounds,  who 
had  not  vet  had  an  opportunity  of  presenting  their  commissions  to  the 


TESTIMONY  FOR  THE  RESPONDENTS.  177 

clerks,  now  was  the  time  to  present  them.  Then  Dr.  Mason  of  New 
York  arose,  saying  that  he  held  certain  commissions.  He  had  a  bundle 
of  papers  in  his  hand,  which  he  held  out,  and  he  said,  they  had  been  re- 
fused by  the  clerks,  and  that  he  now  tendered  them,  and  moved  that  the 
names  should  be  enrolled,  and  the  commissioners  allowed  to  take  their 
seats.  The  Moderator  asked  where  the  commissioners  were  from.  Dr. 
Mason  answered,  that  they  were  from  the  four  Synods — naming  them — 
of  Utica,  Geneva,  Genesee,  and  the  Western  Reserve.  The  Moderator 
replied,  you  are  out  of  order  at  this  time,  as  the  call  was  made  for  com- 
missions of  a  different  character. 

Cross  examined  by  Mr.  Meredith.     I  am  attached  to  what  is  deno- 
minated the  Old-school  party. 

.  Mr..  Samuel  P.  Wilson — sworn.  lama  theological  student  in  the 
Princeton  Seminary.  I  belong  to  the  Old-school  party,  if  worthy  of 
that  honour.  I  attended  at  the  organization  of  the  Assembly  of  1838,  as 
a  spectator.  I  had  a  companion  with  me — Mr.  Twitchell.  He  is  from 
the  same  place  with  myself.  When  I  first  went  into  the  church,  I  pass- 
ed through  the  recess  into  the  grave-yard,  and  entering  by  the  side 
door,  took  my  seat  on  the  side  aisle,  near  the  door.  After  a  few  mo- 
ments, I  thought  that  I  could  see  better  from  the  gallery,  on  the  left  hand 
of  the  pulpit :  I  went  into  that  part  of  the  gallery,  and  seated  myself  there. 
My  companion  and  I  went  up  the  steps  together,  or,  at  any  rate,  we  sat 
together.  I  remember  the  motion  made  by  Mr.  Cleaveland.  After  Dr. 
Ma.son  had  taken  his  seat,  Mr.  Cleaveland  rose,  holding  in  his  hand  a 
paper,  and,  with  his  face  towards  the  Moderator,  commenced  reading,  as 
I  supposed,  from  the  paper:  he  certainly  looked  at  the  paper.  During 
the  reading  he  changed  his  position,  so  that  his  side  was  towards  the  Mo- 
derator, and  his  face  nearly  towards  me.  At  the  conclusion  of  the  paper 
he  moved  that  Dr.  Beman  should  take  the  chair.  I  did  not  hear  the  mo- 
tion seconded,  but  took  it  for  granted  it  was  seconded,  as  it  was  put,  and 
there  was  a  loud  affirmative  vote  of  aye.  I  did  not  hear  the  question 
reversed.  My  impression  at  the  time  vvas,  that  it  was  not  reversed.  I 
heard  no  negative  votes.  I  did  not  make  any  memorandum  at  the  time 
with  my  pencil,  but  remarked  to  my  companion  that  the  question  had 
not  been  reversed.  My  impression  was  very  strong,  but  I  will  say, 
merely,  I  did  not  hear  it.  The  nextAhing  that  I  heard,  after  the  gentle- 
man, (whom  I  subsequently  learned  was  Mr.  Cleaveland,)  had  put  that 
motion,  was  a  motion,  that  Dr.  Mason,  and  some  one  else  should  be 
clerks.  He  put  this  motion,  I  thought  at  the  time,  and  I  still  think  that 
he  did,  but  I  did  not  hear  it  put.  The  first  thing  that  I  heard  after  the 
names,  was  the  response  of  "Aye!"  I  did  not  hear  him  propound  any 
question,  except  as  it  was  propounded  at  first.  I  heard  the  response  of 
"Aye!"  but  no  reversal  and  not  any  noes.  There  was  no  change  in 
Mr.  Cleaveland's  position  when  he  made  the  last  motion,  but  there  were 
a  number  of  persons  around  him,  who  had  risen  to  their  feet.  Then  I 
observed  a  person  moving  out  of  the  pew,  and  up  the  aisle,  and  a  gentle- 
man next  me  informed  me  that  it  was  Dr.  Beman.  He  stood  facing  the 
Moderator,  about  one  half  of  the  way  down  the  aisle  from  the  pulpit. 
What  he  was  doing  1  don't  know :  I  could  see  his  lips  move,  but  could 
not  hear  what  he  was  saying.  There  was  considerable  confusion  by  this 
time  in  the  house.     The  confusion  at  first  arose  from  the  noise ;  but  after 

23 


178  PRESBYTERIAN  CHURCH  CASE. 

Dr.  Beman  took  his  position,  it  was  rather  a  buzz,  and  a  confusion  of 
voices,  than  any  loud,  clamorqus  noise.  The  next  thing  I  was  aware  of, 
was  a  general  motion  of  those  persons  engaged  in  these  proceedings,  and 
of  a  number  of  the  spectators,  towards  the  north  door.  After  the  great 
mass  of  them  had  reached  the  door,  and  passed  through  it,  the  Rev.  Mr. 
Beecher,  of  Jackson  Seminary,  in  Illinois,  announced,  in  a  very  loud 
tone,  that  the  General  Assembly  would  meet  in  the  First  Presbyterian 
Church.  The  same  was  repeated  by  a  second  person  at  the  side  door — 
a  person  somewhat  advanced  in  life.  It  was  not  Dr.  Beecher.  I 
have  seen  Mr.  Eliakim  Phelps  here,  and  I  think  it  was  he :  that  is  my 
impression.  When  the  Moderator  called  for  the  reading  of  the  roll  by 
the  clerk,  Dr.  Patton  rose.  1  cannot  tell  which  rose  first,  he  or  the  clerk, 
who  was  under  me.  He  said,  that  he  had  certain  resolutions,  touching 
the  roll,  which  he  wished  to  offer.  The  Moderator  told  him  he  was  out 
of  order,  as  the  next  business  was  the  reading  of  the  roll  by  the  clerks. 
Dr.  Patton  said,  that  his  motion  referred  to  the  completion  of  the  roll — I 
don't  profess  to  give  his  words  exactly — and  that  he  wished  it  put  with- 
out debate.  The  Moderator  said,  he  was  out  of  order.  He  appealed  to 
the  house.  The  Moderator  told  him  the  appeal  was  out  of  order.  Dr. 
Patton  then  sat  down,  and  the  clerk  proceeded  with  his  roll  and  finished 
it.  The  Moderator  stated,  that  those  whose  names  had  been  read  by  the 
clerks  were  to  be  considered  as  members  of  the  Assembly;  also,  that  if 
there  were  any  other  persons,  who  had  not  yet  presented  their  commis- 
sions to  the  clerks,  now  was  the  time  to  present  them.  Upon  that,  a  gen- 
tleman, whom  I  was  informed,  was  Dr.  Mason,  rose,  and  moved,  that  the 
roll  should  now  be  completed,  by  the  addition  of  the  names  of  certain 
commissioners.  He  stated,  that  their  commissions  had  been  presented 
to  the  clerks,  and  rejected.  The  Moderator  inquired,  if  they  were  from 
bodies  in  connexion  with  the  Presbyterian  Church,  at  the  close  of  the 
Assembly  of  1837.  Dr.  Mason  replied,  that  they  were  from  Presbyte- 
ries within  the  bounds  of  the  Synods  of  Geneva,  Genesee,  Utica,  and 
the  Western  Reserve.  The  Moderator  then  declared  that  they  could 
not  be  received,  and  were  out  of  order.  Dr.  Mason  said,  that,  with  re- 
spect for  the  Chair,  he  must  appeal.  The  Moderator  told  him,  the  appeal 
was  out  of  order.  Dr.  Mason  then  said,  "I  tender  these  commissions, 
and  demand  that  the  names  should  be  put  upon  the  roll.''  I  don't  know 
whether  I  have  given  the  exact  language  of  the  Moderator's  replies : 
only  the  substance  is  impressed  upon  my  mind.  At  this  time,  the  Mo- 
derator repeated  his  call  for  commissions;  and,  at  that  moment,  Mr. 
Squier,  as  I  was  told  it  was,  rose  and  stated,  that  he  had  a  commission 
from  the  Presbytery  of  Geneva,  which  he  had  presented  to  the  clerks, 
and  which  they  had  rejected  or  refused.  He  demanded  a  seat  on  that 
'floor,  and  that  his  name  should  be  put  on  the  roll. 

Cross-examined  hy  Mr.  Meredith.  This  was  a  period  of  vacation  at 
the  seminary,  and  quite  a  number  of  the  students  were  in  the  city.  Some 
of  the  professors  were  here,  but  not  a  majority  of  them,  I  think. 

Mr.  Walter  Lowrie — sworn,  with  the  uplifted  hand.  I  attended  at 
the  organization  of  the  Assembly  of  1838.  I  was  in  the  seat  immediately 
adjoining  the  door  leading  into  the  grave-yard,  on  the  left  of  the  pulpit, 
looking  from  it.  I  was  in  the  south-west  corner  of  the  church,  in  a  wall 
pew — a  pew  running  along  the  wall.     After  the  General  Assembly  had 


TESTIMONY  FOR  THE  RESPONDENTS.  179 

been  opened  with  prayer,  it  was  announced  by  the  Moderator,  that  the 
first  business  was  the  report  of  the  Committee  on  Commissions;  and  he 
called  for  the  report.  Dr.  Patton  arose,  saying,  that  he  had  a  motion  to 
submit:  he  did  not  state  what  the  motion  was,  but  he  held  a  paper  in  his 
hand,  which,  I  presume,  contained  the  motion.  The  Moderator  told  him, 
he  was  out  of  order;  that  the  first  business  was  the  report  on  the  roll. 
Dr.  Patton  said  that  his  resolution  had  relation  to  the  roll.  The  Mode- 
rator replied,  that  the  first  business  was  the  hearing  of  the  roll;  that  he 
was  out  of  order  at  that  time.  Dr.  Patton  said,  he  must,  respectfully,  ap- 
peal from  that  decision  to  the  house.  The  Moderator  said,  that  his  appeal 
was  out  of  order:  I  do  not  recollect,  that  any  reason  was  given,  why  the 
appeal  was  out  of  order.  Dr.  Patton  sat  down,  and  the  Moderator  di- 
rected the  clerks  to  proceed.  Mr.  Krebs  then  read  a  considerable  time, 
until  he  ceased  reading.  After  this,  the  Moderator  announced,  that  if 
there  were  any  commissioners  present,  who  had  not  handed  their  com- 
missions to  the  clerks,  now  they  would  have  an  opportunity  of  doing  so. 
A  gentleman,  whom  I  afterwards  understood  to  be  Dr.  Mason,  rose,  at, 
or  "about  that  time,  and  stated  that  he  held  a  number  of  commissions 
from  certain  Presbyteries,  perhaps  naming  them  as  Presbyteries  in  the 
four  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Reserve;  that 
they  had  been  pesented  to  the  clerks,  but  not  received;  and  that  he  now 
tendered  them  to  the  chair.  The  Moderator  said  that  he  was  not  in  or- 
der at  that  time,  or,  not  now  in  order;  which  his  ipsissima  verba  were,  I 
can't  tell,  but  one  or  the  other.  Dr.  Mason  said,  that  he  must,  respect- 
fully, take  an  appeal  from  this  decision.  The  Moderator  pronounced  the 
appeal  out  of  order,  because  the  business  immediately  before  the  house 
was,  to  receive  those  commissions  that  had  not  yet  been  presented,  if  any 
such  there  were.  After  that,  or  before,  a  gentleman  rose,  who,  I  was 
told,  wfis  the  Rev.  Mr.  Squier,  saying,  that  he  had  presented  his  commis- 
sion to  the  clerks,  and  that  they  had  refused  it.  Whether  he  rose  before, 
or  after  Dr.  Mason,  I  cannot  tell.  He  tendered  the  commission,  and 
claimed  a  seat  as  a  member  of  that  house,  from  the  Presbytery  of  Genesee. 
The  Moderator  asked  him,  if  that  Presbytery  belonged  to  the  Synod  of 
Genesee.  He  said,  that  it  did.  The  Moderator  replied,  "  Sir,  we  do 
not  know  you."  It  was  the  Synod  of  Geneva,  not  Genesee.  I  confound 
the  two  words  frequently,  because  I  do  not  know  the  locality  of  the  two 
Synods,  except  from  indistinct  recollection.  I  think  it  was  immediately 
after  this  that  Mr.  Cleaveland  rose.  At  the  moment  that  he  rose,  I  got 
up  and  stood  on  the  seat.  As  it  was  a  back  seat,  I  could  do  this  without 
any  appearance  of  disorder.  Thus,  I  l|ad  a  full  view  of  Mr.  Cleaveland. 
He  had  a  paper  in  his  hand,  and,  apparently,  he  commenced  by  reading. 
I  heard  but  about  three  or  four  lines  of  the  paper  The  first,  I  did  not 
hear;  but  I  distinguished  these  words:  "We  have  been  advised  by  coun- 
sel learned  in  the  law,  that,  to  secure  a  constitutional  organization,  and 
certain  legal  rights,  it  is  necessary  to  organize,  at  this  time  and  place, 
which  we  will  proceed  to  do,  in  the  shortest  time  possible."  Before  he 
had  proceeded  this  length,  there  were  calls  to  order,  from  the  Moderator 
and  from  others.  After  these  words,  I  could  hear  nothing  more,  dis- 
tinctly, partly  on  account  of  the  noise,  partly  from  his  hurried  enuncia- 
tion—he was  in  a  great  hurry  at  first,  and  the  calls  to  order  seemed  tCK 


180  PRESBYTERIAN  CHURCH  CASE, 

hasten  him — and  partly  by  reason  of  individuals,  around  him,  rising. 
After  he  had  ceased  reading,  he  moved  that  Dr.  Beman  should  take 
the  chair,  and,  immediately  propounded  the  affirmative  of  the  question. 
He  was  answered,  by  the  persons  in  that  neighbourhood  and  behind  him, 
with  a  very  emphatic  "  Aye!"  He  said,  "  I  move  that  Dr.  Beman  take 
the  chair."  The  question  was  then  propounded:  "  Those  in  the  affirma- 
tive will  say,  aye."  I  did  not  hear  the  reverse  of  that  question  ;  and  I 
would  say,  and  say  distinctly,  that  the  reverse  was  not  put.  It  might 
have  been  put,  in  a  lower  tone  of  voice,  and  I  have  not  heard  it  from  my 
position.  But  the  proceedings  which  immediately  followed  did  not  leave 
time  for  it  to  be  put,  even  in  a  whisper.  The  want  of  time  is  sufficient 
proof;  else  I  would  not  swear  to  a  negative.  I  have  been  accustomed  to 
deliberative  assemblies.  For  seven  years  I  was  in  the  Senate  of  this 
State  ;  for  six  years  in  the  Senate  of  the  United  States  ;  and  for  eleven 
years  I  was  Secretary  of  the  latter  body.  The  immediate  proceeding  to 
which  I  refer,  was,  the  motion  that  Dr.  Mason,  and  another  person,  whose 
name  I  did  not  hear,  should  be  clerks.  By  that  time,  the  noise  in  the 
neighbourhood  of  Mr.  Cleaveland,  and  the  rising  around  him,  excluding  him 
from  view,  I  did  not  hear  the  question  put:  I  heard  nothing  but  a  response 
like  the  first.  It  was  a  very  earnest  and  hurried  response  ;  and  I  thought 
there  were  two  or  three  voices  from  the  gallery.  I  heard  nothing  of  this 
on  the  first  question.  I  did  not  hear,  distinctly,  any  question  after  that — for 
others  were  put ;  but  what  they  were,  or  who  put  them,  I  did  not  hear. 
I  thought,  that  the  one  who  put  them  had  moved  nearer  the  door,  but 
persons  rose  between,  and  shut  him  out  from  my  view.  I  heard  no  ne- 
gative responses ;  and  all  the  votes  I  did  hear  were  around  Mr.  Cleave- 
land. I  don't  know  what  testimony  has  been  before  given ;  I  have  just 
come  into  the  court-room  to  day.  During  the  time  these  questions  were 
passing,  a  member  arose,  and  asked  Dr.  Elliott,  if  nothing  could  be  done 
to  restore  order.  The  Moderator  said,  that  he  had  called  to  order,  and 
made  what  efforts  he  could  ;  that,  he  supposed,  the  scene  would  soon  be 
at  an  end,  and  the  house  restored  to  quiet.  This  member  was  the  Rev. 
Robert  J.  Breckinridge.  I  could  not  measure  the  time  that  elapsed,  from 
Mr.  Cleaveland's  rising  till  the  adjournment,  except  by  ideas.  It  was 
such  a  hurried  scene,  that,  without  looking  at  a  watch,  I  could  not  give 
the  time  a  name.  The  whole  transaction  passed  in  extraordinary  haste. 
I  did  not  hear  of  Dr.  Fisher's  appointment  until  the  next  day.  When  I 
went  home,  I  told  the  family,  with  which  I  stayed,  that  Dr.  Beman  had 
been  chosen  Moderator.  They  said,  the  next  day,  that  it  was  Dr.  Fisher. 
I  told  them,  that  then  any  man  might  be  mistaken,  for  I  was  looking  on, 
and  had  seen  nothing  of  it.  I  suppose  I  would  be  set  down  as  an  Old- 
school  man.  I  was  not  a  member  of  that  Assembly,  but  the  members  were 
all  around  me.  I  sat  there  by  courtesy.  I  had  business  with  all  the  mem- 
bers, and  took  any  seat  I  found  vacant. 

Cross-examined  by  Mr.  Wood.  I  was  not  a  member  of  the  Assembly 
that  year  ;  but  I  was  the  year  before.  I  hold  the  office  of  Corresponding 
Secretary  of  the  Board  of  Foreign  Missions,  of  the  Presbyterian  Church. 

Be-examined  by  Mr.  Ingersoll.  I  was  elected,  by  the  Board,  to  that 
place,  in  the  fall  of  1837,  the  time  when  the  Board  commenced  its  exist- 
ence. 


TESTIMONY  FOR  THE  RESPONDENTS.  J  81 

By  Mr.  Preston.  I  was  elected,  before  I  resigned  my  place  in  the 
Senate,  Corresponding  Secretary  of  the  Western  Foreign  Missionary  So- 
ciety.    That  was  transferred  to  the  General  Assembly  in  1837. 

THURSDAY  MORNING,  March  14th— 10  o'clock. 

Br.  Phillips — re-called.  I  was  Moderator  of  the  Assembly  in  1835. 
Dr.  Witherspoon  was  a  member  of  the  Assembly  of  1838,  and  was  pre- 
sent, I  believe.     He  had  been  Moderator  in  1836. 

,     Mr.  Jerome   Twitchell — sworn,  with  the  uplifted  hand.     I  am  a 
theological  student  at  Princeton.     I  went  there  from  the  Miami  Univer- 
sity, of  Oxford,  in  Ohio.     I  am  a  member  of  the  Second  Presbyterian 
Church,  in  Cincinnati,  under  Dr.  Beecher.     I  attended  at  the  organization 
of  the  Assembly  in  1838.      I  came  into  the  building,  and,  in  the  first 
place,  took  a  seat  on  the  right  hand  side  of  the  aisle,  entering  by  the  door 
from  the  grave-yard.     I  found  several  vacant  seats.     This  was  near  eleven 
o'clock,  and  Dr.  Elliott  was  then  in  the  pulpit.     I  was  there  before  the 
sermon  had  commenced.     After  I  had  taken  this  first  seat,  seeing  several 
ladies  standing,  I  moved  farther  back.     Soon  after,  I  saw  a  gentleman 
standing.     I  beckoned  to  him  to  take  my  seat,  and  walking  forward,  went 
up   into  the  gallery.     Mr,   Samuel  Wilson  was  with   me.     I   saw  the 
Moderator  come  down  from  the  pulpit,  and  open  the  Assembly  with 
prayer;  after  which  he  stated,  that  the  next  business  was  the  reading  of 
the  roll  by  the  clerks.     Upon  this  Dr.  Patton  rose,  to  offer  some  resolu- 
tions which  were  in  his  hand.     The  Moderator  decided  that  he  was  out 
of  order.     Dr.  Patton  said,  that  he  wished  to  read  them,  and  have  them 
passed  upon  without  remark.     The  Moderator  told  him,  that  the  next 
business  was  the  reading  of  the  roll.     Dr.  Patton  replied,  that  his  resolu- 
tion had  reference  to  the  roll.     The  Moderator  pronounced  him  out  of 
order.     He  appealed.     The  Moderator  said,  his  appeal  was  out  of  order, 
as  the  house  was  not  yet  organized.     Then  Dr.  Patton  sat  down.     After- 
wards an  individual,  whom,  as  I  learned,  was  Dr.   Mason,  arose,  with  a 
bundle  of  papers  in  his  hand.     Before  this,  however,  a  declaration  had 
been  made  by  the  Moderator,  that  if  there  were  any  more  commissions, 
which  had  not  been  presented,  now  was  the  time  for  them  to  be  handed 
in.     Dr.  Mason  then  rose,  and  said  that  the  commissions,  which  he  held, 
had  been  presented  to  the  clerks,  and  that  they  had  refused  to  enrol  the 
names;  and  he  moved,  that  the  roll  should  be  completed,  by  the  addition 
of  these  names.     The  Moderator  asked,  whether  these  commissions  were 
from  Presbyteries  in  connexion  with  the  General  Assembly,  at  the  close 
of  its  session  in  1837.      Dr.  Mason  answered,  that  they  were  from  Pres- 
byteries, within  the  bounds  of  the  Synods  of  Utica,  Geneva,  Genesee,  and 
the  Western  Reserve.     The  Moderator  said,  "  We  cannot  receive  them 
at  this  time."     After  this  Dr.  Mason  took  his  seat.     A  gentleman  then 
rose,  on  the  opposite  side  of  the  aisle,  whose  name  I  have  since  learned. 
He  said  that  he  had  presented  his  commission  to  the  clerks,  and  that  they 
had  refused  it;  that  he  now  demanded  his  seat  in  the  General  Assembly. 
He  said  that  he  was  from  the  Presbytery  of  Geneva.     The  Moderator 
asked  him,  if  that  Presbytery  was  within  the  bounds  of  the  Synod  of 
Geneva.     He  answered,  that  it  was.     The  Moderator  said,  "  We  do  not 
know  you,  Sir;"  upon  that  he  took  his  seat.     Mr.  Cleaveland  then  rose, 


182  PRESBYTERIAN  CHURCH  CASE. 

holding  a  paper  in  his  hand,  from  which  he  appeared  to  read.  The  first 
part  I  heard  with  tolerable  distinctness:  the  last  part,  not  at  all.  The  first 
part  was,  "  Whereas  certain  individuals  have  been  excluded  from  their 
rights  as  Presbyterians,  their  commissions  having  been  refused  by  the 
clerks,  and  we  have  been  advised  by  counsel  learned  in  the  law,  that,  at 
this  time,  and  this  only,  can  a  constitutional  organization  of  the  Assembly 

take  place,  I  hope  that "     Then  the  noise  prevented  me  from  hearing, 

but  he  used  a  word  seeming  like  "  discourteous."  Next,  I  heard  a  name, 
something  like  B.,  and  I  supposed  it  was  Dr.  Beecher,  who  was  sitting  at 
the  side  of  Mr.  Cleaveland.  Then,  the  nexti.hing  that  I  distinctly  heard, 
was  a  very  loud  vote  on  the  affirmative  of  some  question,  which  I  did  not 
hear.  The  next  thing  I  saw,  for  I  could  not  hear — except  that  I  heard 
several  calls  to  order,  and  some  one  saying,  "  I  hope  we  shall  have  order," 
with  the  Moderator's  distinct  response,  that  the  confusion  would  soon  be 
over — that  he  had  called  order,  and  tried  to  preserve  order,  and  that  he 
hoped  the  members  would  keep  their  seats — the  next  thing  I  saw,  was 
several  individuals  going  into  the  aisle,  from  the  pews  in  which  the  three 
gentlemen  had  arisen,  and  the  surrounding  ones.  In  several  parts  of  the 
house  there  were  individuals  standing  up,  and  there  was  a  rustling  of 
dresses,  and  a  noise  occasioned  by  persons  rising,  in  the  gallery.  Most  of 
those  in  the  gallery  rose.  These,  whom  I  have  mentioned,  having  gone 
into  the  aisle,  I  heard  in  close  succession,  after  they  had  gone  part  of  the 
way  up  the  aisle,  several  affirmative  responses,  apparently  to  questions 
which  I  did  not  hear.  Soon,  a  great  part  of  the  audience  in  the  gallery, 
and  on  the  floor  below — ladies  and  others — I  could  not  then  distinguish 
the  members  on  the  floor — left  the  house.  At  this  time  there  was  a 
general  clapping,  and  some  hissing,  which  I  supposed  to  proceed  from  the 
audience,  rather  than  the  actors  in  the  scene.  After  most  had  left  the 
church,  Mr.  Edward  Beecher  came  back  to  the  door,  and  proclaimed,  in 
an  audible  voice,  that  the  General  Assembly  of  the  Presbyterian  Church 
would  meet  forthwith,  in  the  First  Presbyterian  Church.  The  same  pro- 
clamation was  repeated  at  the  side-door  of  the  house,  by  an  individual 
whom  I  could  not  distinctly  see,  and  did  not  recognise.  I  heard  no  nega- 
tive votes,  and  I  heard  no  question  reversed.  I  cannot  affirm  that  I  heard 
any  votes  in  the  gallery,  because  they  rose  in  a  body,  and.  I  cannot  say 
from  what  part  of  the  house  they  came.  I  cannot  say  how  long  the  whole 
of  these  proceedings  occupied:  it  was  a  moment  of  deep  excitement. 
The  time  was  very  short.  I  did  not  then  know  of  Dr.  Fisher  being 
appointed  Moderator  of  the  body. 

No  cross-examination. 

Rev.  Varnum  Noyes — sworn,  with  the  uplifted  hand.  I  am  a  cler- 
gyman of  the  Presbyterian  Church.  I  was  not  a  delegate  to  the  Assembly 
of  183S.  I  reside  on  the  Western  Reserve,  in  the  state  of  Ohio.  I  now 
belong  to  the  Presbytery  of  Worcester.  In  1837  I  belonged  to  the 
Presbytery  of  Medina,  and  previously  to  the  Presbytery  of  Cleveland. 
The  Presbytery  of  Medina  is  within  the  bounds  of  the  Synod  of  the 
Western  Reserve.  I  am  not  very  intimate  with  any  other  Presbytery, 
but  have  some  acquaintance  with  that  of  Portage,  which,  as  well  as  Cleve- 
land, is  also  within  the  bounds  of  the  Synod  of  the  Western  Reserve. 

Mr.  Hubbell.  How  is  the  Presbytery  of  Medina  constituted  as  re- 
gards Congregationalists  and  Presbyterians? 


TESTIMONY  FOR  THE  RESPONDENTS.  J83 

Mr.  Meredith.  The  witness  will  please  to  wait  one  moment.  What 
is  this  testimony  intended  to  prove? 

Mr.  Hubbell.  We  propose  to  show  that  in  the  three  Presbyteries 
which  Mr.  Noyes  has  mentioned,  a  great  majority  of  the  churches  are 
Congregational;  and  to  follow  up  this  by  similar  testimony,  in  regard  to 
other  Presbyteries  within  the  bounds  of  the  disowned  Synods. 

Mr.  Meredith.  We  have  no  indisposition  to  go  into  this  inquiry,  if 
your  Honour  thinks  it  material;  but  we  desire  to  ascertain  the  exact  ex- 
tent to  which  we  shall  be  permitted  to  go.  It  appears  to  me  that  so  far  as  re- 
,gards  the  exscinding  resolutions,  we  stand  here  upon  a  question  as  to  our 
rights  as  Presbyterians.  Suppose  there  was  not  a  single  true  Presbyterian 
within  the  bounds  of  the  four  Synods;  not  a  man  among  them,  from  the  mi- 
nister down  to  the  humblest  worshipper,  without  some  flaw;  what  remedy 
was  within  the  power  of  the  General  Assembly,  other  than  the  trial  and  ex- 
pulsion of  the  delinquents?  If  a  trial  had  been  given,  it  would  have  been 
conclusive  of  this  question.  If,  instead  of  exscinding  this  great  body  of 
people,  claiming  to  be  Presbyterians,  without  trial,  they  had  been  tried 
for  some  offence,  convicted,  aud  expelled,  such  expulsion  would  have 
been  final.  They  would  not  be  at  liberty  now  to  prove  that  it  was  all  a 
mistake;  that  they  were  as  good  Presbyterians  as  t;hose  who  had  con- 
demned them.  It  would  not  be  competent  to  them  to  show,  that  the  evi- 
dence brought  against  them  had  been  falsely  coloured,  in  its  passage, 
through  the  medium  of  party  feeling.  If,  on  the  other  hand,  the  General 
Assembly  has  thought  fit  to  cut  them  off  without  trial,  without  any  alle- 
gation of  error  in  doctrine,  or  of  irregularity  in  practice,  but  merely  on 
the  ground  that  they  came  into  the  Church  in  an  unconstitutional  man- 
ner, that  they  have  never  really  belonged  to  it,  that  body  must  stand  by  its 
own  act.  It  is  not  competent  to  them  to  prove  now,  that  those  whom 
they  have  attempted  to  exclude  are  Congregationalists;  to  try  them  for  a 
corporate  offence  before  this  court,  which  is  not  the  corporate  tribunal. 
Proof  of  their  delinquency  cannot  be  admitted,  after  judgment  has  been 
already  passed  upon  them.  The  only  questions  now  before  the  court,  in 
regard  to  these  acts  of  excision  is,  whether  by  the  "  Plan  of  Union  "  of 
1801,  the  Presbyterian  Church  did,  or  did  not,  admit  Congregationalists 
into  her  fellowship;  and,  if  she  did,  whether  the  General  Assembly  was 
or  was  not  competent  to  exclude,  on  this  account,  a  large  body  of  un- 
doubted Presbyterians.  I  do  not  expect  to  hear  any  argument  advanced 
to  show  that  the  General  Assembly  had  a  right  thus  to  act.  It  is  not  for  the 
counsel  on  the  opposite  side  to  attempt  now  to  bolster  up  an  unconstitutional 
proceeding,  by  proof  of  the  existence  of  these  Congregational  churches. 
The  examination  of  witnesses  has,  we  think,  proceeded  far  enough;  still  we 
are  quite  ready  to  go  into  this  investigation  at  any  expense  of  time,  though 
we  have  thought  fit  to  ask  the  question,  whether  the  testimony  is  relative 
to  the  point  in  issue. 

Mr.  Ingersoll.  Your  Honour  will  do  us  the  justice  to  affirm  the  posi- 
tion, that  this  was  the  very  course  of  proof  which  we  attempted  to  eschew 
in  an  early  stage  of  the  trial;  but  that  we  were  compelled  to  follow  in 
the  track  marked  out  by  the  plaintiffs'  counsel.  They  led  the  way  into 
the  inquiry  respecting  the  acts  of  the  Assembly  of  1837,  with  a  view  to 
show  the  illegality  of  those  acts.  We  thought  such  an  inquiry  foreign  to  the 
subject;  but  the  point  ^as  decided  against  us.     The  relevancy  of  the  pro- 


184  PRESBYTERIAN  CHURCH  CASE. 

ceedings  of  1S37  was  affirmed  by  the  court.  We,  however,  acquiesced 
cheerfully  in  the  decision.  We  presumed,  indeed,  that  these  proceedings 
w-ere  held  up  to  view  merely  for  effect,  and  this  is  evident  from  our  learned 
friend's  argument.  He  speaks  of  a  condemnation  without  trial  and  with- 
out notice,  the  common  rights  of  an  accused  party.  On  this  point  we 
take  issue:  it  is  the  very  thing  that  we  deny:  there  was  no  such  condem- 
nation. We  maintain  that,  according  to  the  true  construction  of  the 
charter  granted  by  the  legislature  of  Pennsylvania,  and  of  the  whole  form 
and  system  of  government  of  the  Presbyterian  Church,  the  "  Plan  of 
Union"  of  ISOl  was  unconstitutional,  and  either  voidable  or  void — at  all 
events  a  mere  temporary  expedient.  The  General  Assembly  may  ori- 
ginally have  spread  its  wings  over  a  vast  circle,  extending  widely  its 
protection  and  patronage;  but  it  did  not  contemplate  the  perpetuity  of 
such  a  system.  When  it  became  unnecessary  this  protection  was  with- 
drawn. We  say  then,  that  the  plan  was  not  only  unconstitutional,  but 
also  temporary,  and  that  as  a  temporary  plan  it  might  be  abrogated.  But 
all  this  pertains  to  our  defence,  and  we  now  propose  to  establish  it.  We 
wish  to  present  evidence  of  facts,  which  we  contend  are  a  sufficient  justi- 
fication for  our  proceedings,  which  have  been  erroneously  condemned  as 
being  in  the  nature  of  criminal  process.  We  ask  leave  to  show  the  pro- 
priety of  our  acts — to  show  'that  there  existed  in  the  body  of  the  four 
disowned  Synods,  sets  of  individuals  who  were  not  Presbyterians.  These 
individuals,  however,  were  not  to  be  condemned  on  this  account.  Per- 
haps they  were  even  to  be  lauded.  They  were  but  pursuing  their  own 
path  to  salvation.  The  lamp  for  my  feet  is  not  the  lamp  for  every  man's 
feet.  Perhaps,  I  say,  these  men  were  to  be  applauded.  They  were  not 
in  fact  condemned,  but  merely  disunited  from  us.  I  put  a  case:  Suppose 
it  were  discovered  that  by  the  "  Plan  of  Union  "  of  1801,  worshippers  at 
Mecca  or  Constantinople  had  been  admitted  into  the  Church:  would  it 
not  be  competent  for  us  to  show  the  fact  of  their  admission,  in  order  to 
prove  the  unconstitutionality  of  the  ''Plan?" 

We  offer  this  testimony  then  as  a  justification  of  our  acts.  We  believe 
that  the  true  merits  of  this  case  are  resolvable  into  the  proceedings  not 
of  1837,  but  of  1838;  and  that  the  proof  of  their  irregularity  will  be  a  bar 
to  all  polemical  topics.  Yet  at  this  moment  we  cannot  foresee,  but  that 
this  testimony  may  prove  important.  Our  opponents,  too,  have  gone  into 
the  breach,  and  we  must  follow  them.  Our  object  is,  first,  to  meet  the  as- 
sertion that  our  proceedings  were  in  the  nature  of  condemnatory  process; 
and  secondly,  to  give  our  reasons  for  them. 

Judge  Rogers.  I  admitted  the  proceedings  of  the  Assembly  of  1837, 
in  explanation  of  those  of  1838.  I  then  did  not,  and  still  do  not  under- 
stand, how  we  could  do  without  them.  I  then  thought  that  the  proceed- 
ings of  1837  vv^ere  necessary  to  the  defendant's  case,  and  I  still  think  so. 
But  with  the  reasons  of  these  proceedings  we  have  nothing  to  do.  We 
are  to  determine  only  what  was  done:  the  reasons  of  those  who  did  it  are 
immaterial.  If  the  acts  complained  of  were  within  the  jurisdiction  of  the 
Assembly,  their  decision  must  be  final;  even  though  they  decided  wrong- 
fully. I  do  not  think  any  church  ought  to  wish  the  civil  power  to  inter- 
fere in  such  matters. 

Rev.  Fi'ancis  McFarland — sworn,  with  the  uplifted  hand.  The 
General  Assembly  has  three  Boards :  the  Board  of  Education,  the  Board 


TESTIMONY  FOR  THE  RESPONDENTS.  Jg^ 

of  Missions,  as  it  is  called,  for  domestic  missions,  and  the  Board  of  Fo- 
reign Missioris.  The  Assembly  has  no  connection  with  the  Home  Mis- 
sionary Society.  Some  years  ago,  they  recommended  that  society  to  the 
patronage  of  their  churches.  The  Assembly  has  no  connection  with  what 
is  styled,  I  think,  the  Central  Education  Society.  I  am  Corresponding 
Secretary  of  the  Board  of  Education,  attached  to  the  General  Assembly. 
I  have  some  of  the  books  of  that  Board  with  me.  _  Our  register  contains 
the  names  of  the  young  men  assisted  by  the  Board,  and  our  ledger,  the 
sums  paid  to  all  these  young  men. 

Judge  Rogers.     What  has  this  to  do  with  the  case? 

Mr.  Hubbell.  Mr.  Randall,  the  other  day,  read  from  the  reports  of  the 
Presbyteries,  to  the  General  Assembly,  statements  of  their  contributions 
io  certain  charities.  We  desire  to  show,  that  those  reports  were  made,  in 
obedience  to  a  resolution  of  the  Assembly,  requiring  the  Presbyteries  to 
report  their  contributions,  not  only  to  tlie  Boards  of  the  Church,  but  to 
all  charitable  societies;  and  that,  in  those  reports,  the  sums  appropriated 
to  the  difterent  objects,  are  not  distinguished;  and  we  are  prepared  to  show, 
that,  in  those  years,  when,  from  the  extracts  read,  the  Presbyteries  re- 
ferred to,  would  appear  to  have  contributed  largely,  but  a  few  hundred 
dollars  of  these  contributions  were  appropriated  to  the  Church  funds. 

Judge  Rogers.  The  extracts  read  by  Mr.  Randall,  were  offered  to 
prove,  merely  the  recognition  of  those  Presbyteries  by  the  General  As- 
sembly. In  this  view  of  the  case,  it  is  entirely  immaterial,  whether  only 
one  dollar,  or  ten  thousand  dollars  were  contributed. 

Mr.  Randall.  They  were  oflered  to  show  a  right  vested  in  the  ex- 
scinded bodies. 

Mr.  Hubbell.  Then  I  was  mistaken  as  to  the  intention  of  the  counsel. 
I  supposed  the  evidence  was  given  to  raise  an  equity  in  favour  of  the  dis-- 
owned  Synods. 

Mr.  Randall.  We  have  nothing  to  do  with  equity;  or,  rather,  the 
law  will  be  the  equity  of  the  case. 

Mr.  Hubbell.  We  can  produce  evidence  that  these  bodies  have  never 
contributed  anything  to  the  Theological  Seminary  fund,  or  to  the  Foreign 
Missionary  fund. 

Mr.  Randall.     I  have  already  proved  by  the  record  that  they  have. 

Mr.  Hubbell.  Your  Honor  sees,  that  it  is  intended  to  insist  on  this 
point  in  argument,  and  yet  we  are  excluded  from  rebutting  the  testimony 
given. 

Mr.  Wood.  We  do  not  intend  to  insist  upon  it,  further  tl^an  as  it  re- 
gards the  recognition  of  the  four  Synods. 

Mr.  Thomas  Evans — sworn,  ivith  the  uplifted  hand.  I  attended 
the  Assembly  of  1838,  in  the  church  in  Ranstead  Court,  at  its  organiza- 
tion. I  occupied  a  part  of  one  of  the  front  pews,  in  the  west  gallery,  and 
the  south-west  part  of  that  gallery.  I  saw  Mr.  Cleaveland  rise,  and  he 
had  in  his  hand  a  paper,  which  he  proposed  reading.  I  was  told  by  a 
gentleman  near  me,  that  it  was  Mr.  Cleaveland.  I  was  a  stranger  in  the  city, 
having  for  twelve  years  past  resided  in  one  of  the  Southern  States.  The 
Moderator  called  him  to  order.  With  his  face  towards  me  he  continued 
to  read,  but  turned  gradually  until  he  faced  a  little  north-west  of  where  I 
sat.  I  did  not  understand  the  contents  of  the  paper.  I  could  not  hear 
his  reading  distinctly.     1  heard  his  voice,  but  could  not  understand  what 

24 


186  PRESBYTERIAN  CHURCH  CASE. 

he  said.  I  was  in  the  front  seat  of  the  gallery,  and  nearer  to  the  pulpit, 
than  to  the  other  end  of  the  churcli.  Mr.  Cleaveland  was  almost  oppo- 
site to  me,  perhaps  a  little  to  the  north-east  from  where  I  sat.  I  am  con- 
fident that  I  did  not  hear  what  lie  read.  I  mean  to  say,  I  did  not  under- 
stand what  he  read:  I  heard  his  voice.  The  noise  and  confusion  at  that 
time,  prevented  me  from  understanding.  I  heard  him,  after  reading  the 
paper,  propose,  that  Dr.  Beman  should  act  as  temporary  Moderator  of  the 
Assembly.  He  wished  all  those  who  were  in  favour  of  the  motion,  to 
signify  it  by  saying,  aye.  There  was  then  a  loud  vote  in  the  affirmative, 
and  Dr.  Beman  stepped  out  into  the  aisle.  T+ie  question  was  not  revers- 
ed. I  took  particular  notice  of  this  at  the  time;  for,  from  out-of-door 
reports,  I  had  supposed,  that  the  motion  would  be  voted  down.  I  remem- 
ber stating  to  a  gentleman,  after  the  Assembly  had  adjourned,  that  the 
question  had  not  been  reversed.  I  feel  entire  confidence  that  it  was  not 
reversed.  Dr.  Beman  then  stepped  out  into  the  aisle:  I  think  that  he 
and  Mr.  Cleaveland  had  been  silting  in  the  same  pew.  I  think  Dr.  Be- 
man sat  by  the  door.  They  were  certainly  in  the  same  immediate  neigh- 
bourhood, if  not  in  the  same  pew.  Dr.  Fisher  was  then  nominated,  by 
somebody,  as  Moderator  of  the  Assembly,  of  1838;  this  nomination  was 
seconded  by  some  person,  I  do  not  know  by  whom,  the  motion  was  put, 
and  a  loud  vote  in  the  affirmative  given.  Then  a  motion  was  made,  that 
those  in  favour  of  these  proceedings,  should  retire,  or  adjourn,  to  the  rear 
of  the  house.  Accordingly,  a  great  many  persons  moved  off  towards  the 
north  end  of  the  house,  and  formed  in  the  middle  aisle,  about  halfway,  I 
should  suppose,  from  the  pulpit.  I  am  unable  to  state,  what  was  done 
after  this,  until  it  was  said,  by  a  number  of  persons,  that  the  General  As- 
sembly had  adjourned  to  the  First  Presbyterian  Church — Mr.  Barnes's 
church.  There  was  considerable  confusion  and  noise,  which  prevented 
me  from  hearing.  I  heard  a  good  deal  of  noise,  and  saw  several  persons 
applauding,  and  clapping  their  hands,  in  some  of  the  pews  on  the  middle 
aisle.  I  do  not  like  to  tell  their  names,  for  fear  of  giving  offence.  One 
of  them  was  a  gentleman  of  high  respectability,  who  lives  in  Philadel- 
phia. I  had  been  only  a  few  weeks  in  Philadelphia.  When  the  vote  in 
the  affirmative  was  given,  on  the  motion  that  Dr.  Beman  should  take  the 
chair,  I  heard  some  noes,  simultaneously,  with  the  ayes.  A  young  gentle- 
man, who  was  sitting  close  by  me,  voted,  "No!"  and  there  were  other 
votes  from  the  galleries.  This  young  gentleman  was  the  one  from  whom 
I  learned  the  names  of  the  different  parties.  There  were  ladies  in  the 
gallery:  I  cannot  say  whether  they  remained  silent.  Those  around  me 
appeared  to.  While  the  body  was  retiring,  there  was,  I  recollect  dis- 
tinctly, great  applause.  I  keep  a  hat  store  in  this  city,  and  attend  the 
Tenth  Presbyterian  Church — Mr.  Boardman's.  I  am  a  communicant  of 
that  church.  I  think  I  had  then  handed  in  my  certificate,  from  the  First 
Presbyterian  Church  of  Augusta,  Georgia,  of  vvhich  I  had  been  a  member 
before  that  time. 

Cross-examined  by  Mr.  Randall.— I  think  my  papers  had  been 
handed  in,  and  that  I  was  admitted.  Mr.  Boardman's  church  belongs  to 
the  Old-school  party,  and  to  the  Second  Presbytery  of  Philadelphia.  I 
profess  to  be  a  Presbyterian.  I  think  I  have  sympathized  with  the  Old- 
school,  believing  myself  nearest  the  truth,  in  my  sympathies  with  them. 
I  have  been  influenced  by  nobody,  in  these  sympathies. 


TESTIMONY  FOR  THE  RESPONDENTS.  jg-y 

Rev.  Henry  ./?.  Boardman — sivorn,  tvith  the  uplifted  hand.  I  am 
the  pastor  of  the  Tenth  Presbyterian  Church  in  this  city.  I  was  not  a 
delegate  to  the  General  Assembly  of  1S3S.  I  attended  at  the  opening  of 
the  Assembly  in  that  year:  my  ])osition  was  in  the  south-west  corner  of 
the  ciiurch,  under  the  gallery,  in  front  of  the  Moderator,  in  either  the 
front  pew,  or  the  one  lining  the  wall.  Those  seats  are  elevated  one  step 
above  the  floor  of  the  church.  Mr.  Cleaveland  rose  with  a  paper  in  his 
hand,  and  with  his  face  toward  the  Moderator.  He  had  been  sitting  in 
the  spot  pointed  out  by  each  of  the  witnesses.  He  made  some  remark, 
the  purport  of  which  I  do  not  remember.  He  was  not  called  to  order 
immediately  b)'-  the  Moderator,  and  began  to  read.  Here  and  there  I 
understood  a  clause,  but  can  now  remember  only  the  words,  "  counsel 
Jearne.d  in  the  law."  As  he  read,  his  eyes  were  intently  fixed  upon  the 
paper.  He  seemed  very  much  agitated;  his  countenance  was  flushed, 
and  his  frame  and  voice  trembled.  As  he  read  he  turned  gradually,  till 
he  faced  the  western  wall  of  the  church.  The  Moderator  repeatedly 
called  him  to  order,  and  rapped  with  his  hammer.  Other  members  around 
me,  called  to  order,  and  used  various  expressions.  Some  said  this  was 
shameful  disorder,  and  others,  "Let  him  go  on."  As  he  proceeded,  the 
people  in  his  neighborhood,  in  the  body  of  the  house,  began  to  rise.  He 
then  moved,  that  Dr.  Beman  should  be  Moderator.  I  think  he  used  that 
expression,  or  one  equivalent  to  it.  He  called  for  the  ayes,  saying  that 
those  in  favour  would  say  aye;  and  there  was  a  very  loud  "Aye!"  He 
did  not  reverse  the  question.  Either  Mr.  Cleaveland,  or  some  one  else 
then  made  another  motion,  which  I  did  not  hear,  and  Mr.  Cleaveland,  as 
I  recollect,  put  this  also,  calling  for  the  ayes,  but  not  reversing  the  ques- 
tion. I  speak  with  some  confidence  of  these  questions  not  being  reversed, 
for  I  spoke  of  it  at  the  time,  and  then  supposed  that  it  arose  from  Mr. 
Cleaveland's  embarrassment.  There  was  great  confusion,  and  many  stood 
up,  some  on  the  seats,  and  even  on  the  backs  of  the  pews.  There  was  a 
movement  then,  in  the  middle  aisle,  toward  the  northern  door,  and  the 
subsequent  proceedings  were  completely  shut  out  from  my  view.  I 
heard  nothing  but  a  hum  or  buzz,  excepting  now  and  then  a  loud,  tumul- 
tuous "Aye!"  One  voice,  in  particular,  sounded  high  above  the  rest.  I 
did  not  hear  one  of  the  questions  put,  and  was  utterly  at  a  loss  to  know 
what  they  were.  I  did  not  know  of  Dr.  Fisher's  being  Moderator,  until 
the  close  of  that  morning's  session,  or  until  the  next  morning,  and  I 
denied  it,  when  I  first  heard  it  stated.  After  several  of  these  responses  of 
"  Aye!"  had  been  made,  there  was  a  movement  of  this  mass  in  the  body 
of  the  house,  toward  the  north  door,  and  I  took  it,  that  the  actors  in  the 
scene  had  receded.  There  was,  at  length,  another  movement  toward  that 
and  the  east  door,  and  somebody  cried  out,  in  a  very  high  and  shrill  voice, 
that  the  General  Assembly  had  adjourned  to  Mr.  Barnes'  church,  which 
excited  a  smile.  Presently  this  was  proclaimed  again  near  the  east  door; 
whether  the  same  person  had  gone  round,  and  repeated  the  proclamation, 
I  don't  know.  The  house  was  filled  with  spectators  during  this  scene, 
and  was  very  crowded.  A  number  of  these  left  the  house,  with  the 
retiring  body;  but  I  think  the  greater  part  remained.  None  of  the  Old- 
school  party,  to  my  knowledge,  voted  on  any  of  these  questions.  I  think, 
on  the  first,  there  were  a  few  noes  simultaneously  with  the  ayes,  but  it 
was  not  reversed.     These  noes  did  not  come  from  the  part  of  the  house 


188  PRESBYTERIAN  CHURCH  CASE. 

where  the  Old-school  party  sat.  They  seemed  to  come  from  the  same 
vicinity  with  the  ayes,  but  perhaps  may  have  come  from  the  gallery. 

No  cross-exa7nination.        ' 

Mr.  Hugh  Jluchincloss — sworn,  with  the  uplifted  hand.  I  attended 
at  the  organizationof  the  Assembly  in  1838.  I  wasacommissioner  from  the 
Presbytery  of  New  York.  I  sat  in  the  south-west  corner  of  the  church,  un- 
der the  gallery.  I  am  not  a  clergyman,  but  a  ruling  elder.  Dr.  Mason  had 
scarcely  taken  his  seat,  when  Mr.  Cleaveland  rose.  I  did  not  hear  him 
address  the  Moderator,  but  he  commenced  immediately  reading  a  paper. 
What  the  paper  contained,  I  did  not  distinctly  hear.  I  then  heard  him 
put  the  question,  upon  the  nomination  of  a  certain  gentleman  for  Mode- 
rator. Whether  the  gentleman  was  Dr.  Beman,  or  Dr.  Beecher,  I  did 
not  know  at  the  time.  The  question  being  put,  there  were  a  number  of 
irregular  votes  in  the  affirmative.  I  did  not  hear  any  negatives,  and  am 
sure  that  the  reverse  of  the  question  was  not  put.  Another  motion  was 
made,  that  Dr.  Mason  and  Mr.  Gilbert  should  be  clerks,  and  this  was  put 
in  the  affirmative,  but  not  in  the  negative.  There  was  considerable  noise 
around  the  place  were  this  scene  was  acting,  and  in  the  galleries.  Distinct 
voices  from  the  gallery  responded  "Aye!"  and  there  was  clapping  of 
hands.  After  this,  a  number  rushed  to  the  door,  and  went  olit  in  a  disor- 
derly manner,  and  cried  out,  that  they  had  adjourned  to  meet  in  the  First 
Presbyterian  Church — Mr.  Barnes'.  I  should  judge,  that  all  these  pro- 
ceedings did  not  occupy  more  than  five  or  six  minutes,  at  most.  The 
answer  of  the  Moderator  to  Dr.  Mason's  motion,  when  he  presented  the 
commissions,  was,  that  he  was  out  of  order  at  that  time.  I  did  not  hear 
Dr.  Fisher  appointed  Moderator,  nor  did  I  know  until  the  following 
morning  that  he  had  been.     I  did  not  vote  on  any  of  these  questions. 

Cross-examined  by  Mr.  Randall.  I  belong  to  the  Duane-street 
Church,  in  New  York.  We  don't  rank  under  the  banner  of  any  party, 
but  under  the  Presbyterian  banner — the  banner  of  the  cross.  We  cer- 
tainly are  an  Old-school  church.  This  term  was  given  by  the  New- 
school  party,  in  the  General  Assembly  of  1831.  I  was  very  proud  to  be 
ranked  among  the  Old-school.  I  don't  know  the  individual  who  first 
used  the  term.  It  came  from  the  neighbourhood  of  my  respected  friend 
here,  (pointing  at  Dr.  Absalom  Peters.) 

Mr.  Hubbell  o^creAihe  Assem.  Dig.  p.  118. — An  article  from  the 
Plan  of  Union  between  the  original  Synods  of  New  York  and  Philadel- 
phia: 

"That  when  any  matter  is  determined  by  a  major  vote,  every  member  shall  either 
actively  concur  with,  nr  i)assively  submit  to,  such  determination;  or,  if  his  conscience 
permit  him  to  do  neither,  he  shall  be  at  liberty  modestly  to  reason  and  remonstrate,  and 
peaceably  withdraw  from  our  communion,  without  attemptinof  to  make  any  schism; 
provided,  always,  that  this  shall  be  understood  to  extend  only  to  such  determinations, 
as  the  body  shall  judge  indispensable  in  doctrine  or  Presbyterian  Government." — 
Page  3. 

Mr.  William  Wilson — sworn.  I  was  a  delegate  to  the  General  As- 
sembly of  1838,  from  the  Presbytery  of  New  Brunswick.  I  attended  at 
the  opening  of  the  Assembly.  My  situation  was  about  the  sixth  or  seventh 
pew,  I  think,  from  the  front,  on  the  west  side  of  the  middle  aisle.  I  am  a 
ruling  elder.  Mr.  Cleaveland  was  close  by  where  I  sat.  He  had  a  paper 
in  his  hand,  which  he  wished  to  read,  and  he  stated  that  he  meant  no  dis- 


TESTIMONY  FOR  THE  RESPONDENTS.  Jgg 

courtesy,  but  that  "we," — I  did  not  understand  who  "we"  were — "have 
been  advised  by  learned  counsel,  that  this  is  the  true  place  in  which  we 
must  organize."     I  sat  at  the  door  of  the  pew,  next  the  aisle.     While  he 
was  attempting  to  read,  he  was  called  to  order  by  the  Moderator;  and 
several  other  persons,  in  different  parts  of  the  house,  in  the  vicinity  of 
the  Moderator,  called  him  to  order.     I  heard  also  one  or  more  voices  dis- 
tinctly urging  him,  in  a  low  but  exceedingly  earnest  tone,  to  go  on.     In  the 
course  of  the  proceeding,    he  moved,  that  Dr.  Beman    be  appointed  to 
take  the  chair;  which  motion,  I  believe,  was  seconded  by  somebody  in 
the  same  quarter.     When  he  put  the  question,  I  heard  an  indefinite  num- 
ber of  ayes  ring  through  the  whole  church,  very  loudly.     Some  of  them 
seemed   to  come  from  the  gallery,  from  the  manner  in  which  the  sound 
.filled  the  house.    The  calls  to  order,  still,  in  some  measure  continued.    The 
Moderator  used  his  mallet,  and  expressed  himself  in  some  woi'ds  that  I 
did  not  exactly  hear,  and  finally  sat  down.     Dr.  Beman,  who  was  sitting 
at  the  door  of  the  pew  in  which  Mr.  Cleaveland  sat,  came  out  of  the  pew. 
The  question  was  not  reversed.     I  did  not  hear  it  reversed,  and  was  so 
close,  that,  if  it  had  been,  I  should  have  heard  it.     Then  there  was  a  move- 
ment farther  back  into  the  house — back  from  the  Moderator's  chair,  and 
several  pews  back  of  where  I  sat.     I  was  then  between  this  movement  and 
the  Moderator's  seat.     What  took  place,  after  they  were  out  of  my  vicin- 
ity, I  did  not  hear.     I  heard  noises,  confused  sounds,  and  very  loud  ayes, 
but  I  kept  my  seat  during  the  whole  time.     I  heard  no  nays  on  any  of  the 
votes  taken  at  that  time.     I  did  not  vote.     It  appeared  to  me,  from  where 
I  sat,  that  the  sound  got  nearer  the  northern   door,  and  finally,  a  great 
body  of  persons  moved  out.     Then  I  heard  it  proclaimed,  in  or  near  the 
church,  that  the  General  Assembly  would  meet  in  the  First  Presbyterian 
Church,  on  Washington  Square.     I  knew  nothing  of  the  appointment  of 
Dr.  Fisher  as  Moderator,  till  I  heard  it  by  common  fame,  or  rumour.    The 
whole  operation  occupied   but  a  very  few  moments — I    should   say,  not 
more  than  five  minutes  elapsed,  from  the  time  Mr.  Cleaveland  began  to 
read.     His  manner  was  hurried,  and  the  whole  proceeding  was  conducted 
in  a  hurried  way. 

A  gentlemen  to  my  left,  in  the  same  pew  with  Mr.  Cleaveland,  whom 
I  did  not  know  till  afterwards,  made  a  motion.  Mr.  Cleaveland  was  in 
a  pew  immediately  opposite  to  me,  to  the  east,  across  the  aisle.  This 
gentleman  arose,  after  the  Moderator,  according  to  his  announcement, 
had  opened' the  meeting  with  prayer  and  stated  that  the  first  business 
was  for  the  clerks  to  report  a  roll,  and  attempted  to  present  a  paper 
which  he  held  in  his  hand.  The  Moderator  declared  him  to  be  out  of 
order  at  that  time.  The  gentleman  appealed  from  the  decision  of  the 
Moderator.  The  Moderator  stated,  that,  for  the  same  reasons  that  the 
motion  was  out  of  order,  the  appeal  was  out  of  order,  or  out  of  order  at 
that  time.      I  understood  him  to  say  that  it  was  for  the  same  reasons. 

There  was  another  gentleman,  in  the  same  pew,  who,  after  the  roll  had 
been  reported,  offered,  as  I  understood,  some  papers,  which  shared  the 
same  fate,  as  those  offered  by  the  first  gentleman.  These  proceedings 
were  not  conducted  in  an  orderly  manner.  The  first  two  gentlemen's  pro- 
ceedings I  considered  all  orderly.  I  am  not  a  judge  of  order,  but  I  mean 
to  say  they  were  quiet.  The  other  proceedings  were  tumultuous  and 
^noisy — so  much  so,  as  to  make  it  painful  to  some  present,  to  hear  and  see 


190  PRESBYTERIAN  CHURCH  CASE. 

the  transaction.     There  was  considerable  noise,  and  clapping  of  hands, 
and  something  like  cheering,  just  as  the  body  moved  off  to  the  north 
door,  and  were  about  leaving.'    At  the  same  time,  a  number  moved  off 
towards  the  door  from  the  gallery. 
No  cross  examinatio7i. 

Mr.  Hubbell  offered  an  extract  from  the  "  Pastoral  Letter,"  Jlppen- 
dix  to  Minutes,  {New-school,)  1S3S,/?.  663,  and  the  court  decided,  on 
the  suggestion  of  the  counsel  for  the  relators,  that  if  a  part  of  the  docu- 
ment was  read,  the  whole  must  be  considered  in  evidence. 

^'■Pastoral  Letter  to  the  Churches  under  the  care^of  the  General  Assembly, 

Beloved  in  the  Lord — It  is  well  known  ag  a  matter  o  f  hisiory,  that  the  Presbyterian 
Church  in  our  nation  commenced  in  the  union  of  pious  natives  and  foreigners  of  Con- 
gregational and  Presbyterian  origin.  These  differences  in  her  early  and  feeble  state, 
occasioned  no  interruption  of  her  peace  and  efficiency.  But  as  her  members  increased, 
they  produced  contentions,  which  resulted  in  the  violent  expulsion  of  one  Synod  by 
another,  and  a  separation  of  seventeen  years. 

The  terms  of  re-union  were,  a  subscription  of  the  Confession. of  Faith,  "as  containing 
the  system  of  doctrine  taught  in  the  Holy  Scriptures,"  noi  withstanding  any  such  "scru- 
ples with  respect  to  any  article  or  articles  of  said  Confession,  as  the  Presbytery  or  Synod 
shall  judge  not  essential  or  necessary,  in  doctrine,  worship  or  discipline;"  and  "the 
Synod  do  solemnly  agree  that  none  of  us  will  traduce,  or  use  any  opprobions  terms  of 
those  who  differ  from  us  in  those  extra  essential  and  not  necessary  points  of  doctrine, 
but  treat  them  with  the  same  friendship,  kindness,  and  brotherly  love,  as  if  they  had  not 
differed  from  us  in  such  sentiments." 

"  By  this  «  plan  of  union,'  the  peace  of  the  Church  was  restored,  and  her  prosperity 
augmented,  though  from  some  circumstances  the  administration  of  her  policy  was 
continued  without  envy,  in  the  hands  of  the  immigrant  Presbyterian  portion  of  the 
Church. 

When  the  tide  of  population  began  to  roll  westward,  and  the  territories  of  our  Church 
were  fast  filling  up  with  pious  emigrants  from  the  East,  a  proposal  was  made  by  the 
General  Assembly  of  our  Church  to  the  Association  of  Conneclinnt,  to  permit  the  union 
in  the  same  church  of  Presbyterians  and  Congregatioiialists  in  the  new  t^etthinpnts,  for 
the  greater  facility  of  supporting  and  extendmgthe  institutions  of  religion.  This  union, 
so  congenial  with  the  spirit  of  the  Gospel,  exerted  for  a  long  time  an  auspicious  influ- 
ence, in  the  extension  of  Presbyterian  churches  from  the  Hudson  to  the  JMississippi. 

But  at  length,  in  the  mysterious  providence  of  God,  it  came  to  pass  that  the  very 
causes  of  our  prosperity  became  the  occasions  of  disaster.  For,  in  tiie  rapid  multiplica- 
tion of  new  states  and  Presbyterian  churches,  it  soon  became  apparent  that  native 
American  Presbyterians  must  unavoidably  become  a  majority  of  the  Church;  and 
though  the  slight  variations  of  doctrine  and  policy  created  no  alarm  while  the  helm  of 
pow(>r  was  supposed  to  be  safe,  the  prospect  of  its  passing  to  other  liands  created  a 
strong  sensation. 

About  this  time  a  plan  of  union  was  formed  with  the  Associate  Reformed  Church,  and 
a  considerable  accession  was  made  to  our  Church  from  that  body;  and  soon  after,  the 
system  of  ecclesiastical  organization  commenced  for  the  administration  of  the  charities 
of  the  Church,  with  increasing  unfriendliness  to  voluntary  associations,  till  the  one  was 
established,  and  the  others  were  disclaimed  and  opposed. 

During  the  progress  of  these  movements,  the  slight  shades  of  doctrinal  dif?^rence,  al- 
ways known  and  permitted  to  exist  in  the  Church,  before  and  since  the  adopting  act, 
and  recognized  in  every  form,  as  consistent  with  the  Confession  of  Faith  and  the  unity 
of  the  Spirit  in  the  bonds  of  peace,  became  the  occasions  of  alarm,  and  whisperings,  and 
accusations,  and  at  lenjrth,  of  ecclesiastical  trials  for  heresy;  while  doctrines  and  mea- 
sures unknown  to  the  Confession  were  selerted  as  tests  of  orthodoxy. 

"As  the  results  of  these  efforts  to  change  the  terms  of  subscription  and  union,  the  Gen- 
eral Assembly  of  1837,  "convinced  that  a  separation  of  the  parties  was  the  only  cure," 
and,  "that  a  separation  by  personal  process  was  impossible,  or  if  possible,  tedious,  agi- 
tating and  troublesome  in  the  highest  degree,"  proceeded  without  charges,  citation,  wit- 
nesses, or  a  judicial  triil,  to  separate  four  Synods  and  one  Presbytery  from  the  Presby- 
terian Church.  In  these  circumstances,  apprised  by  counsel  of  the  unconstitutionality 
of  the  disfranchising  act,  and  advised  of  a  constitutional  mode  of  organization,  we  did, 


TESTIMONY  FOR  THE  RESPONDENTS.  191 

in  a  meeting  for  consultation  and  prayer,  on  the  15th  day  of  May,  1838,  send  the  follow- 
ing proposal  tola  large  number  of  commissioners  to  the  Assembly  met  in  another  place, 
viz: 

"  Resolved,  That  while  we  regard  with  deep  sorrow  the  existing  difficulties  in  our 
beloved  Church,  we  would  fondly  hope  that  there  are  no  insurmountable  obstacles  in 
the  way  of  averting  the  calamities  of  a  violent  dismemberment,  and  of  securing  such  an 
organization  as  may  avoid  collisions,  and  secure  the  blessings  of  a  perpetual  harmonious 
action. 

"  Resolved,  That  we  are  ready  to  cooperate  in  any  efforts  for  pacification,  which  are 
constitutional,  and  which  shall  rt  cognise  the  regular  standing  and  secure  the  righls  of 
the  entire  Church,  including  those  portions  which  the  acts  of  the  last  General  Assembly 
were  intended  to  exclude. 

,  "  Resolved,  That  a.  committee  of  three  be  now  appointed,  respectfully  to  communicate 
the  foregoing  resolutions  to  those  commissioners  now  in  session  in  this  city,  who  are  at 
present  inclined  to  sustain  the  acts  of  the  last  General  Assembly,  and  inquire  whether 
they  will  open  a  friendly  conference  for  the  purpose  of  ascertaining  if  some  constitu- 
tional terms  of  pacification  may  not  be  agreed  upon." 

While  this  proposal  was  under  consideration,  it  was  resolved  by  the  meeting, 

"  That,  should  a  portion  of  the  commissioners  to  the  next  General  Assembly  attempt 
to  organize  the  Assembly,  without  admitting  to  their  seats  commissioners  from  all  the 
Presbyteries  recognised  in  the  organization  of  the  General  Assembly  of  1837,  it  will 
then  be  the  duty  of  the  commissioners  present  to  organize  the  General  Assembly  of 
1838,  in  all  respects  according  to  the  Constitution,  and  to  transact  all  other  necessary 
business  consequent  upon  such  organization." 

To  our  communication  we  received  the  following  answer  : 

"  The  committee  on  the  communication  from  'the  meeting  of  commissioners,'  now  in 
session  in  theleciure  room  of  the  First  Church,  presented  the  following  preamble  and 
resolutions,  which  were  adopted  :  viz. 

"  Whereas  the  resolutions  of '  the  meeting,'  while  they  profess  a  readiness  '  to  co-ope- 
rate in  any  efforts  for  pacification  which  are  constitutional,'  manifestly  proceed  upon 
the  erroneous  supposition  that  the  acts  of  the  last  General  Assembly,  declaring  the  four 
Synods  of  the  Western  Reserve,  Utica,  Geneva,  and  Genesee,  out  of  the  ecclesiastical 
connection  of  our  Church,  were  unconstitutional  and  invalid,  and  the  convention  cannot 
for  a  moment  consent  to  consider  them  in  this  light;  therefore, 

"  Resolved  unanimously.  That  the  convention  regard  the  said  overture  of  '  the  meet- 
ing,' however  intended,  as  founded  on  a  basis  which  is  wholly  inadmissible,  and  as  cal- 
culated only  to  disturb  that  peace  of  our  Church,  which  a  calm  and  firm  adherence  to 
those  constitutional,  just,  and  necessary  acts  of  the  last  General  Assembly,  can  alone, 
by  the  blessing  of  Divine  Providence,  establish  and  secure. 

"  Resolved,  That  in  the  judgment  of  the  convention,  the  resolution  of  the  last  General 
Assembly,  which  provides,  in  substance,  that  all  churches  and  ministers  within  the 
said  four  Synods,  which  are  strictly  Presbyterian  in  doctrine  and  order,  and  wish  to 
unite  with  us,  may  apply  for  admission  into  those  Presbyteries  belonging  to  our  con- 
nection which  are  most  convenient  to  their  respective  locations ;  and  that  any  such 
Presbytery  as  aforesaid,  being  strictly  Presbyterian  in  doctrine  and  order,  and  now  in 
connection  with  either  of  the  said  Synods,  as  may  desire  to  unite  with  us,  are  directed 
to  make  application,  with  a  full  statement  of  their  case,  to  the  next '  General  Assembly, 
which  will  take  order  thereon,'  furnishes  a  fair  and  easy  mode  of  proceeding,  by  which 
all  such  ministers,  churches,  and  Presbyteries,  within  the  said  Synods,  as  are  really  de- 
sirous to  be  '  recognised'  as  in  regular  standing  with  us,  and  as  proper  parts  of  our  '  en- 
tire Church,'  may  obtain  their  object  without  trouble  and  without  delay." 

By  this  answer,  all  prospect  of  conciliation  or  an  amicable  division  being  foreclosed, 
we  did,  after  mature  consideration  and  fervent  prayer,  proceed,  at  a  proper  time  and 
place,  to  organize,  in  a  constitutional  manner,  the  General  Assembly  of  1838 ;  which, 
beine  accomplished  on  our  part,  without  violence  or  tumult,  the  Assembly  adjourned  to 
the  First  Presbyterian  Church. 

During  the  session  of  the  Assembly,  on  Wednesday,  May  24th,  the  following  resolu- 
tion was  passed,  viz ; 

"  Resolved,  That  this  body  is  willing  to  agree  to  any  reasonable  measures,  tending 
to  an  amicable  adjustment  of  the  difficulties  existing  in  the  Presbyterian  Church,  and 
will  receive  and  respectfully  consider  any  propositions  which  may  be  made  for  tliat  pur- 
pose. "» 


192  PRESBYTERIAN  CHURCH  CASE. 

Besides  these  overtures  for  peace,  influential  members  of  the  Assembly  held  personal 
conference  with  members  of  the  other  body,  till  it  was  ascertained  that  there  was  no 
hope  of  an  amicable  settlement  of  differences. 

In  the  retrospect  of  this  mournful  history,  we  are  compelled  to  regard  the  excision  of 
the  four  Synods  and  the  Third  Presbytery  of  Philadelphia,  with  the  setting  up  a  new 
test  of  doctrine  and  measures,  as  an  exercise  of  power  by  the  Assembly  unknown  to  the 
Constitution,  and  dangerous  to  the  purity  and  liberty  of  the  Church,  perpetuating  to  an 
accidental  majority  unlimited  and  irresponsible  power,  and  affording  to  minorities  only 
such  protection  as  may  be  found  in  passive  obedience  and  non-resistance. 

We  could  not  fail  to  perceive,  in  a  General  Assembly  concentrating  in  itself  legisla- 
tive, judicial,  and  executive  power,  and  dispensing  the  discipline,  the  honors,  and  the 
copious  revenues  of  the  Church,  the  elements  of  an  eaclesiastical  organization,  which, 
with  less  pretension  in  the  beginnini',  had  once,  for  more  than  ten  centuries,  subverted 
the  liberties  and  rolled  back  the  civilization  of  the  world. 

To  have  acquiesced  in  such  concentration  of  irresponsible  ecclesiastical  power  and 
patronage,  would  have  been  to  abandon  the  constitution  of  the  Church,  which  we  had 
solemnly  engaged  to  defend — to  expose  large  amounts  of  property  to  diversion  from  its 
intended  use,  to  subject  the  churches  to  a  wide-spread,  vexatious  litigation — to  abandon 
to  aggression  and  division,  a  large  and  efficient  body  of  concordant  churches  with  their 
pastors — to  surrender  the  rights  of  conscience,  and  free  inquiry,  and  charitable  enter- 
prise, to  an  organization  never  recognised  by  Heaven  as  their  keeper,  or  clpthed  by  our 
Constitution  with  their  power;  and,  finally,  to  throw  apparently  the  example  of  our 
extended  and  powerful  Church — the  patron,  hitherto,  of  constitutional  liberty — on  the 
side  of  those  elements  of  strife  and  violence,  which  already  so  powerfully  agitate  the 
nation. 

We  love  and  honour  the  Confession  of  Faith  of  the  Presbyterian  Church  as  containing 
more  well-defined  fundamental  truth,  with  less  defect,  than  appertains  to  any  other 
human  formula  of  doctrine,  and  as  calculated  to  hold,  in  intelligent  concord,  a  greater 
number  of  sanctified  minds  than  any  which  could  now  be  formed;  and  we  disclaim  all 
design,  past,  present,  or  future,  to  change  it.  But  it  is  not  the  Bible,  nor  a  substitute  for 
the  Bible,  nor  a  stereotyped  page,  to  be  merely  committed  to  memory,  by  unreflecting, 
confiding  minds,  without  energy  of  thought,  and  a  prayerful,  faithful  searching  of  the 
Scriptures.  It  is  itself  an  illustrious  monument  of  the  independent  investigation  of  the 
most  gifted  minds,  and  breathes  and  inspires  the  spirit  which  formed  it. 

We  impute  to  our  brethren  no  intention  of  producing  the  results  which  we  anticipate 
from  their  measures,  but  good  intentions  do  not  change  the  nature  or  avert  the  mis- 
chiefs of  erroneous  principles  and  injurious  actions.  It  is  a  matter  of  history,  that  some 
of  the  greatest  calamities  of  the  Church  have  flowed  from  principles  and  innovations 
introduced  by  good  men,  and  with  the  best  intentions. 

And  now,  beloved  brethren,  we  beseech  you  to  unite  v/ith  us  in  thanksgiving  to  God, 
for  the  harmony,  and  kind  feeling  and  decision  which  have  pervaded  our  deliberations 
and  action,  and  for  those  wide-spread  and  exuberant  effusions  of  the  Spirit  the  past 
year,  which,  amid  unusual  sorrows,  and  fears  of  deserved  judgments,  have  caused  the 
tide  of  spiritual  prosperity  to  flow  deep  and  broad,  the  expression  of  sovereign  mercy 
and  the  pledge  of  future  love. 

It  is  our  desire  and  expectation  that  ye  will  persevere  in  welldoing,  and  not  be  seized 
with  any  sudden  amazement,  through  manifold  temptations  and  trials  of  your  faith  and 
patience,  and  that  you  will  not  be  moved  away  from  the  gospel  which  ye  have  heard, 
and  the  "form  of  sound  words"  and  salutary  discipline,  so  influential  in  our  past  pros- 
perity. 

We  exhort  that  fervent  charity  be  maintained  among  you,  and  a  spirit  of  prayer  for 
the  continued  presence  and  power  of  the  Holy  Spirit,  and  devotedness  to  those  labours 
which  God  especi;illy  employs  fi)r  the  promotion  of  revivals  of  religion,  the  great  end 
of  all  means,  and  the  comprehension  of  all  spiritual  good. 

But  while  these  thinss  are  faithfully  done,  we  pray  you  that  other  duties  of  impe- 
rious obligation  and  urgent  necessity  be  not  neglected;  particularly  that  your  charity 
for  Home  and  Foreign  missions,  and  the  education  of  a  holy  ministry,  and  lor  all  our 
long-cherished  voluntary  associations,  be  not  suffered  to  decline,  but  rather  to  flow  on 
with  augmented  power,  and  fiiith,  and  prayer. 

That  especial  care  be  taken  to  send  and  sustain  a  full  representation  of  the  Church, 
as  a  mean  of  mutual  communication  of  knowledge,  the  culture  of  confidence,  and  the 
production  of  wise  counsels. 


TESTIMONY  FOR  THE  RESPONDENTS.  193 

And  now,  brethren,  we  commend  you  to  Him  who  is  'able  to  keep  yoii  from  falling, 
and  to  present  you  faultless  before  the  presence  of  his  glory  with  exceeding-  joy,'  pray- 
ing 'that  ye  might  be  filled  with  the  knowledge  of  his  will,  in  all  wisdom  and  spiritual 
understanding,  that  ye  might  walk  worthy  of  the  Lord  unto  all  pleasing,  being  fruitful 
in  every  good  work,  and  increasing  in  the  knowledge  of  God  ;  strengthened  with  all 
might  according  to  his  glorious  power,  unto  all  patience  and  long-suffering  with  joyful- 
ness.' 

Now  our  Lord  Jesus  Christ  himself,  and  God,  even  our  Father,  which  have  loved 
us,  and  given  us  everlasting  consolation  and  good  hope  through  grace,  c&mforZ  yenir 
hearts,  and  establish  you  in  every  good  word  and  work. 

SAMUEL  FISHER,  Moderator, 
ERSKINE  MASON,  Stated  Clerk. 

Philadelphia,  May  25lh,  1838." 

Mr.  Hubhell  commenced  reading  from  the  Minutes  of  1837,  p.  468. 
•     Mr.  Randall.     For  what  purpose  is  this  testimony  offered? 

Mr.  Hubbell.  To  show  that  there  did  exist  a  dispute  between  the 
Old  and  New  Schools  in  regard  to  doctrine  and  tenets.  First  I  will^read 
the  report  of  a  committee,  which  was  adopted  by  the  Assembly,  and  then 
a  protest  against  the  adoption  of  it. 

Judge  Rogers.     What  has  all  this  to  do  with  the  case? 

Mr.  Hubbell.     I  thought  that  I  had  explained  that  in  my  opening. 

Judge  Rogers.     It  has  nothing  to  do  with  the  case. 

Mr.  Hubbell.  Well,  I  merely  thought  proper  to  offer  it.  In  my 
opening  I  referred  to  various  rules  of  order:  I  suppose  they  will  be  con- 
sidered in  evidence  without  a  second  reading. 

Mr.  Meredith.  The  whole  book  of  Church  order  is  in  evidence;  but 
I  do  not  consider  Jefferson's  Manual  as  testimony. 

Mr.  Hubbell.     No,  it  is  merely  an  authority. 

Judge  Rogers.  I  don't  think  we  have  any  thing  to  do  with  differen- 
ces of  doctrine  between  these  two  parties.  No  doubt  there  are  differen- 
ces. 

Next  was  offered  Jissem.  Dig.  p.  17. 

"  Sect.  4.  A  Moderator  having  been  duly  chosen,  the  former  Moderator  before  he 
resigns  his  seat,  addresses  him  and  the  Assembly,  thus: 

"  Sir — It  is  my  duty  to  inform  you,  and  to  announce  to  this  house,  that  you  are  duly 
elected  to  the  office  of  Moderator  in  this  General  Assembly.  For  your  direction  in  of- 
fice, and  for  the  direction  of  this  Assembly  in  all  your  deliberations,  before  I  leave  this 
seat,  I  am  to  read  to  you  and  this  house  the  rules  contained  in  the  records  of  this  Assem- 
bly; which  I  doubt  not  will  be  carefully  observed  by  both,  in  conducting  the  business 
that  may  come  before  you. 

"  [Here  the  Moderator  is  to  read  the  rules,  and  afterwards  add] 

"  Now,  having  read  these  rules,  according  to  order,  for  your  instruction  as  Modera- 
tor, and  for  the  direction  of  all  the  members,  in  the  management  of  business — praying 
that  Almighty  God  may  direct  and  bless  all  the  deliberations  of  this  Assembly  for  the 
glory  of  his  name,  and  for  the  edification  and  comfort  of  the  Presbyterian  Church  in 
the  United  States, — I  resign  my  place  and  office  as  Moderator.— 1791.  Vol.  I.  p.  30." 

Id.  p.  16.  "  Sect.  1.  Immediately  after  public  worship,  on  the  day  appointed  for  the 
meeting  of  the  Assembly,  the  Moderator  takes  the  chair;  and  having  called  the  com- 
missioners to  order,  offers  prayer  to  Almighty  God,  for  his  direction  and  blessing. 

"  Sect.  2.  The  Moderator  then  calls  for  the  commissions;  which  being  delivered  to 
the  clerk,  and  publicly  read,  a  list  of  the  commissioners  is  made  out  in  the  order  of  the 
Presbyteries. 

"  Rule — The  Assembly  having  proceeded  to  business  without  attending  sufficiently 
to  the  order  prescribed  in  the  Constitution,  respecting  the  commissions  of  the  members; 
and  having  been  led  into  that  inattention  by  precedents  in  the  former  sessions  of  the 
General  Assembly;  it  was  thought  necessary  to  declare: — That  the  business  ought  not 
in  future,  to  be  entered  iy)on  by  the  Assembly,  until  the  commissions  delivered  to  the 

25 


194  PRESBYTERIAN  CHURCH  CASE. 

clerk  shall  have  been  publicly  read,  according  to  the  express  letter  of  the  Constitution. — 
1791.  Vol.  I.  p.  26. 

"  Sect.  3.  The  list  of  the  commisdoners  present  being  completed,  a  new  Moderator 
is  chosen." 

Mr.  HiibbelL  The  date  of  this  publication  is  1820.  This  was  the 
rule  before  the  alteration  to  which  the  witnesses  have  testified. 

Id.  p.  24.  "  Sect.  9.  General  Rules  for  regulating  the  proceedings  of  the  Assem- 
bly, which  are  read  by  the  Moderator  before  he  resigns  his  seat  to  his  successor. 

(Here  follow  the  Rules,  which  need  not  be  inserted.  It  is  enough  to 
say  that  they  occupy  three  pages  of  the  Assem,bly's  Digest. 

Rev.  Williani  S.  Plumer — sworn.  I  was  a  delegate  to  the  General 
Assembly  of  the  Presbyterian  Church  in  1838,  from  the  Presbytery  of 
East  Hanover  in  Virginia.  This  Presbytery  includes  the  chief  part  of 
the  tide-water  district  of  Virginia.  The  part  north  of  the  Rappahannock, 
however,  is  not  included,  except  two  counties  on  the  Eastern  Shore.  I 
reside  in  Richmond.  I  attended  at  the  organization  of  the  Assembly  in 
1838,  and  was  at  the  house  from  an  early  hour  in  the  morning,  perhaps 
from  nine  o'clock.  I  know,  that  all  the  doors  of  the  church,  at'which  the 
congregation  usually  enter,  were  open  from  ten  o'clock,  and  I  think  they 
were  not  closed  that  morning.  I  was  seated  in  the  open  area  in  front  of 
the  pews.  This  drawing  (a  ground  plan  of  the  Seventh  Presbyterian 
Church  put  into  his  hand)  is  not  exact.  Originally  the  two  front  pews 
had  circular  parts  in  front;  now  these  circular  parts  have  been  taken  away, 
and  the  pews  are  oblong.  I  was  seated  in  the  open  area,  with  a  table,  to 
the  left  of  the  Moderator  as  he  sat.  Around  me  were  seated.  Dr.  Wither- 
spoon,  not  very  far  oif;  Dr.  Phillips,  perhaps  ten  or  twelve  feet  in  another 
direction,  and  others.  When  Dr.  Miller,  before  the  organization  of  the 
Assembly,  came  in,  I  gave  him  my  chair,  and  reclined  against  my  small 
table.  Dr.  William  Harris  was  not  far  from  me.  Mr.  Robert  J.  Breck- 
inridge was  not  many  feet  off,  but  I  do  not  now  recollect  his  relative  posi- 
tion. Mr.  Krebs  was  not  very  far  from  me:  he  sat  at  the  side  of  the 
clerk's  table.  Dr.  Samuel  B.  Wilson  was  in  the  position  that  he  described 
the  other  day,  a  little  to  my  left.  Rev.  James  C.  Wilson  was  also  not  far 
from  that  place,  in  either  the  front  or  rear.  When,  in  the  usual  manner, 
the  Moderator  had  descended  to  organize  the  Assembly,  he  took  the  chair, 
and  stated,  that  the  first  business  was  the  report  upon  the  roll  made  out 
by  the  Committee  of  Commissions.  The  clerk  about  that  time,  or  before, 
was  in  a  standing  posture.  He  did  not  instantly  commence  reading,  he 
had  his  papers  however.  Before  he  commenced,  Dr.  Patton  rose,  and 
said  that  he  had  certain  resolutions,  which  he  wished  to  offer  at  this  stage 
of  the  proceedings.  The  Moderator  said  he  was  out  of  order,  as  the  first 
business  was  the  report  of  the  clerks.  Dr.  Patton  replied  that  his  resolu- 
tions related  to  that  very  subject.  The  Moderator  still  said,  that  he  was 
out  of  order,  as  the  house  was  not  organized,  or  something  conveying  that 
idea.  Dr.  Patton  took  an  appeal,  which  the  Moderator  pronounced  out 
of  order,  and  he  then  resumed  his  seat.  The  Moderator  called  upon  the 
clerk  to  proceed  with  the  roll,  which  he  did,  and  as  I  supposed,  completed 
it.  Shortly  after  the  committee  had  made  their  report,  Dr.  Mason,  who 
sat  in  a  pew  which  was  entered  from  the  middle  aisle,  six  or  seven  pews 
from  the  front,  rose,  and  said  that  he  moved,  or  wished  to  move — First, 
however,  I  should  mention,  that  as  soon  as  the  report  of  the  committee 


TESTIMONY  FOR  THE  RESPOxNDENTS. 


195 


had  been  read,  the  Moderator  announced,  that,  if  there  were  any  commis- 
sioners present,  who  had  not  presented  their  commissions  to  the  clerks, 
or  to  the  Standing  Committee  of  Commissions,  and  had  them  enrolled, 
should  now  present-them.  It  was  immediately  after  this,  that  Dr.  Mason 
arose.  He  said,  that  he  had  certain  commissions  which  had  been  refused 
by  the  clerks,  and  he  moved,  either  that  the  names  of  the  commis- 
sioners should  be  placed  on  the  roll,  or  that  their  commissions  should  be 
examined,  and  they  enrolled.  The  Moderator  replied,  that  they  could 
not  now  be  received,  or,  you,  or  they,  are  out  of  order  at  the  present 
time. 

At  this  moment  Dr.  Mason  seemed  greatly  embarrassed,  which,  how- 
ever, he  did  not  show,  otherwise  than  by  the  tremulousness  of  his  voice: 
•what  he  uttered  was  not  incoherent.  Very  politely,  he  said,  that,  with 
great  respect  for  the  Chair,  he  must  appeal  from  the  decision.  The  Mode- 
rator told  him  he  was  out  of  order.  He  then  sat  down,  and  made  a  re- 
inark  to  some  one  in  the  pew;  but  I  am  not  certain  I  heard,  and  there- 
fore shall  not  state  it.  I  have  since  heard  it  reported,  and  do  not  know 
whether  I  have  gathered  it  from  what  I  then  heard,  or  from  the  report 
since,  and  on  that  account  shall  not  testify.  Dr.  Mason  stated,  when  he 
first  arose,  that  the  commissions  which  he  held  had  been  presented  to  the 
clerks  and  refused.  His  idea  was  to  get  them  upon  the  roll.  As  soon  as 
he  had  sat  down,  Mr.  Squier  arose,  and  said  that  he  had  a  commission 
from  the  Presbytery  of  Geneva,  that  it  had  been  refused  by  the  clerks,  or 
the  Committee  of  Commissions,  and  that  he  now  demanded  that  his  name 
should  be  put  on  the  roll.  The  Moderator  asked  hini,  whether  the  Pres- 
bytery of  Geneva  belonged — belonged  was  his  word — to  the  Synod  of 
Geneva.  Mr.  Squier  replied,  that  it  was  within  the  bounds  of  that  Sy- 
nod. The  Moderator,  waving  his  hand,  said,  "We  do  not  know  you." 
At  this  period,  I  was  reclining  against  the  table,  with  my  head  about  five 
feet  from  the  floor.  I  noticed  a  little  consultation,  and  my  attention  being 
turned  in  that  direction,  heard  a  member  opposite  to  me,  move  the  ap- 
pointment of  a  Committee  of  Elections,  I  do  not  know  that  this  motion 
was  seconded:  my  impression  is  that  it  was.  I  do  not  know  who  made 
it,  but  I  did  know  at  that  time.  Before  the  Chair  had  announced  the 
motion,  the  interruption  began.  I  saw  a  little  stir,  and  observed  Dr. 
Beecher,  and  Dr.  Taylor,  who  was  a  delegate  to  the  Assembl}^  from  the 
General  Association  of  Connecticut,  seated  together,  I  believe  in  the  pew 
behind  Mr.  Cleaveland.  They  were  moving  their  hands,  and  making 
gestures  with  their  heads,  and  I  thought  I  heard  the  words,  "  Go  on!  go 
on!"  I  am  certain  that  they  were  making  gestures,  but  am  not  positive 
that  I  heard  the  words.  The  gestures  could  not  be  mistaken.  Mr. 
Cleaveland  arose,  with  his  face  towards  the  Moderator,  but  did  not  ad- 
dress him,  or  any  other  person  or  persons.  He  began  with  the  word 
"Whereas,"  in  his  usually  loud  and  distinct  tone-  As  he  read,  he  turn- 
ed his  face  toward  the  opposite  side  of  the  main  aisle,  his  tones  became 
lower,  and,  toward  the  conclusion,  I  could  not  hear  what  he  said.  I 
could  distinguish  the  words,  "a  constitutional  organization  must  be  ob- 
tained at  this  time  and  place,"  and  "  in  accordance  with  the  advice  of 
gentlemen  learned  in  the  law."  I  heard  his  apology — he  hoped  it  would 
not  be  considered  discourteous;  and  I  thought  that,  in  connection  with 
these  words,  I   heard^  the  words,   "  least  interruption  and  shortest  time 


196  PRESBYTERIAN  CHURCH  CASE. 

possible."  All  this  was  from  Mr.  Cleaveland's  paper.  At  the  conclu- 
sion of  the  paper,  I  heard  his  voice — as  I  supposed,  for  now  it  had  lost 
its  natural  vigour  and  clearness,  and  had  become  tremulous  and  agitated — 
saying,  "  I  nominate  Dr.  B." — I  thought  at  the  time  it  was  Beman — or, 
"I  move  that  Dr.  Beman" — to  what  he  nominated  him  I  did  not  hear. 
I  may  state  here,  that  I  had  a  distinct  idea  lodged  in  my  memory,  that 
Dr.  Beecher's  name  had  been  used,  at  some  time  after  Dr.  Beman's  nomi- 
nation, but  to  what  I  did  not  hear.  Whether  I  mistook  it  for  Fisher 
or  Beman  I  cannot  say.  After  the  nomination  of  Dr.  Beman,  I  heard 
nothing,  until  what  would  have  been  an  affirmative  vote,  which,  for  loud- 
ness, I  have  never  heard  equalled  on  the  hustings  of  a  Virginia  Court.  I 
am  certain  that  it  might  have  been  heard  across  Washington  Square,  at 
any  quiet  period  of  the  twenty-four  hours — that  is,  from  one  side  of  the 
Square  to  the  other.  I  am  not  certain  who  this  stentor  was;  but  I  thought 
it  was  a  small  gentleman  mounted  on  the  back  of  the  pew — upon  the  lit- 
tle riband  at  the  top.  Why  I  thought  so  I  cannot  tell:  the  gentleman 
was  not  facing  me,  and  I  did  not  know  him.  The  back  part  of  his  hair 
indicated  that  he  was  an  old  man — considerably  older  than  myself. 
Court  adjourned. 

THURSDAY  AFTERNOON— 4  o'clock. 

Mr.  Plumer — examination  continued.  This  morning  I  closed  my 
account  of  the  circumstances  that  attended  the  first  vote,  after  Mr.  Cleave- 
land  took  the  floor.  So  far,  I  have  told  all  that  1  saw,  but  I  do  not  sup- 
pose that  I  saw  all;  for  there  was  a  dense  mass  of  people  standing  up — a 
good  many  of  them  on  the  seats  of  the  pews.  I  heard  no  more  nomina- 
tions from  this  time,  and  even  as  to  the  nomination  of  Dr.  Beman,  I  may 
be  mistaken.  There  were  three  or  four  very  loud  responses  of  "Aye!" 
but  I  could  not  tell  to  what  they  were  responses.  Not  long  after  the 
last  "  Aye'."  there  was  a  movement  towards  the  north  end  of  the 
church,  away  from  the  Moderator.  The  persons  who  had  been  acting  in 
this  scene  removed  to  a  considerable  distance — possibly  twenty  feet.  I 
heard  nothing  afterwards,  until  a  gentleman,  whom  I  took  to  be  Presi- 
dent Beecher — but  if  it  was  he,  he  had  changed  his  apparel  since  I  had 
travelled  with  him,  a  few  days  before — came  to  the  middle  door,  and  very 
loudly  proclaimed,,  that  the  General  Assembly  had  adjourned  to  meet 
forthwith  in  Mr.  Barnes'  church.  There  were  two  other  annunciations 
of  the  same  thing,  by,  I  think,  some  person  of  a  different  voice — next,  at 
the  east  door,  at  the  north  end  of  the  house,  and  lastly,  at  the  door  near- 
est the  pulpit,  on  the  Moderator's  right,  and  the  east  side  of  the  house. 
There  were  clapping  and  hissing  in  the  gallery.  I  do  not  know  whether 
any  persons  in  the  gallery  voted  or  not.  No  person  in  my  vicinity  voted, 
in  either  the  affirmative  or  negative,  on  any  question.  I  could  not,  if  I 
had  wished  to  do  so,  have  voted  intelligently.  I  did  not  hear  any  rever- 
sal of  Mr.  Cleaveland's  motion;  I  firmly  believe  it  was  not  reversed,  and 
certainly  it  was  not,  so  that  I  could  hear;  and  the  next  "Aye?"  came  so 
soon,  that  it  confirmed  my  impression,  for  no  time  was  allowed  for  put- 
ting both  the  negative  and  another  motion.  Of  course  any  answer,  in 
regard  to  the  time  which  these  proceedings  occupied,  must  be  exceeding- 
ly vague.     My  impression  that  day,  when  some  persons  were  conversing 


TESTIMONY  FOR  THE  RESPONDENTS.  I97 

on  the  subject,  was,  that  it  did  not  exceed  five  minutes.  I  took  no  note 
of  time  by  my  watch,  nor  did  I  think  about  time,  but  of  what  was  going 
on.  I  now  know  Mr.  Joshua  Moore.  He  sat  in  the  General  Assembly 
which  held  its  meetings  in  the  Seventh  Presbyterian  Church.  After  the 
Moderator  had  called  for  commissions,  I  saw  Mr.  Moore  come  to  the 
clerks'  seat,  but  what  he  said  or  did  I  don't  kno\Y.  I  first  learned  that 
Dr.  Fisher  had  been  appointed  Moderator,  some  time  after  the  proclama- 
tion of  adjournment  had  been  made;  whether  that  day  or  the  next,  I  don't 
remember. 

Cross-examined  by  Mr.  Randall.  I  was  elected  Moderator  of  the 
Assembly  in  the  church  in  Ranstead  Court,  that  year.  I  became  ac- 
quainted with  Mr.  Cleaveland,  some  years  ago  in  Boston,  Massachusetts. 
.  He  is  ordinarily  a  very  prompt  man.  I  think  Mr.  Cleaveland  could  put 
a  question  as  quickly  as  any  other  man,  with  an  equally  stout  voice,  when 
not  embarrassed.  I  do  not  think  my  estimate  of  the  length  of  time  that 
these  proceedings  occupied  is  testimony.  If  he  said,  "  All  those  who  are 
in  favour  will  say,  aye;"  and  "  All  those  who  are  opposed  will  say,  no," 
he  could  say  it  as  soon  as  I  have  done.  The  book  requires,  that  the  ques- 
tion should  be  stated  when  it  is  put. 

I  ought  perhaps  to  state,  as  descriptive  of  the  witness,  that  I  am  editor 
of  "  The  Watchman  of  the  South,"  a  paper  established  in  August,  1837; 
and  that  I  have  taken  an  active  part  in  the  discussion  of  the  Assembly's 
proceedings  of  that  year.  It  was  for  this  purpose,  among  others,  that  the 
journal  was  established. 

Rev.  Dr.  David  Elliott — sivorn,  with  the  uplifted  hand.  I  was  the 
Moderator  of  the  Assembly  of  1837,  who  presided  at  the  opening  of  the 
Assembly  in  1838.  Immediately  after  the  religious  exercises  had  closed, 
on  the  morning  that  the  body  was  convened,  I  announced  from  the  pulpit, 
that,  as  soon  as  the  benediction  had  been  pronounced,  I  would  take  the 
chair  below  the  pulpit,  and  proceed  to  organize  the  Assembly.  Accord- 
ingly I  did  so,  and  having  offered  a  prayer,  immediately  after  taking  the 
chair,  I  then  called  upon  the  clerks  to  report  the  roll,  if  they  had  formed 
one.  Before  that  call  was  complied  with  by  the  clerks,  Dr.  Patton,  arose, 
and  remarked,  in  substance — I  do  not  pretend  to  repeat  his  very  words — 
that  he  wished,  now,  to  offer  certain  resolutions  that  he  held  in  his  hand, 
and  that  they  should  be  passed  upon  by  the  house.  I  replied,  that  he 
was  out  of  order,  as  the  first  business  was  the  report  of  the  clerks  upon  the 
roll.  Dr.  Patton  replied,  that  his  resolutions  related  to  the  formation  of 
the  roll,  and  would  take  but  little  time,  or  something  to  that  effect.  I 
reminded  him,  that  he  was  out  of  order,  that  the  first  business  was  the 
report  upon  the  roll,  and  that  the  clerk  was  on  the  floor.  By  this  time 
Mr.  Krebs  had  arisen,  or,  if  up  before,  was  standing  on  the  left  of  the 
table,  and  I  directed  him  to  proceed.  Dr.  Patton  took  his  seat.  Mr. 
Krebs  then  proceeded  to  read  the  roll,  and  at  the  close,  stated  that  there 
were  also  in  his  hands  some  informal  commissions,  which  he  now  pre- 
sented to  the  Moderator;  and  he  laid  them  on  the  desk,  immediately  in 
front  of  where  I  sat.  Then  I  announced,  that  the  persons  whose  names 
had  been  thus  reported,  were  to  be  considered  members  of  the  house,  and 
added,  continuously,  that  if  any  other  commissioners  were  present,  from 
Presbyteries  in  connexion  with  the  Presbyterian  Church,  who  were  not 
enrolled,  and  had   iiot  had  an  opportunity  of  presenting  their  commis- 


198  PRESBYTERIA>f  CHURCH  CASE. 

sions,  they  would  now  have  an  opportunity  of  doing  so,  and  of  being 
enrolled. 

At  this  time,  I  believe  it  was,  that  a  gentleman  arose,  whom  I  did  not 
then  know,  but,  afterwards,  learned  to  he  the  Rev.  Dr.  Mason.  He  stated, 
that  he  held  in  his  hand  certain  commissions — he  had  a  bundle  of  papers 
in  his  hand — commissions  that  had  been  tendered  to  the  clerks,  or  to  the 
Committee  of  Commissions,  and  had  been  refused;  and  that,  he  desired 
now  to  present  them,  for  the  purpose  of  completing  the  roll.  I  asked 
him,  where  they  were  from,  or  whether  they  were  from  Presbyteries  in 
connexion  with  the  Presbyterian  Church  at  the  close  of  the  session  of  the 
Assembly  of  1837 — I  am  not  certain  which  form  of  speech  I  used,  but 
one  or  the  other  of  the  two.  He  replied,  that  they  were  from  Presby- 
teries within  the  bounds  of,  or  belonging  to,  the  Synods  of  Utica,  Geneva, 
Genesee,  and  Western  Reserve.  I  informed  him,  that  he  was  out  of 
order  at  this  time,  or  now — using  one  or  the  other  of  these  forms  of 
speech.  Dr.  Mason  observed,  that,  with  great  respect  for  the  chair,  he 
must  beg  leave  to  appeal  from  that  decision.  I  remarked,  that  the  appeal, 
also,  was  out  of  order  at  that  time.  Dr.  Mason  then,  as  I  recollect,  sat 
down.  Immediately  after  this,  a  gentleman  rose,  whom  I  did  not  recog- 
nise, though  I  had  had  some  acquaintance  with  him  several  years  before: 
I  afterwards  heard  that  it  was  Mr.  Squier.  He  stated,  that  he  had  a 
commission  from  the  Presbytery  of  Geneva;  that  he  had  tendered  it  to 
the  clerks,  or  to  the  Committee  of  Commissions;  that  it  had  been  refused; 
and  that  he  now  demanded  his  seat  in  the  Assembly.  I  asked  him,  if 
that  Presbytery  was  within  the  bounds  of  the  Synod  of  Geneva.  He 
answered,  that  it  was.  I  replied,  "We  do  not  know  you.  Sir."  He 
made,  in  reply,  some  remark,  the  purport  of  which  I  do  not  distinctly 
remember,  and  sat  down,  or,  at  any  rate,  did  not  further  press  the  matter. 
To  the  best  of  my  recollection,  I  then  repeated  the  call  for  the  same  kind 
of  commissions,  and  in  the  same  form.  Before  the  last  words  of  the 
repeated  call  were  out  of  my  mouth,  the  Rev.  Mr.  Cleaveland  rose,  with 
a  paper  in  his  hand,  and  commenced  either  reading  or  speaking,  I  can't 
say  which;  but  he  had  a  paper  before  him,  which  he  held  in  both  hands, 
and  towards  which  he  looked.  Whether  he  made  some  prefatory 
remarks,  or  began  to  read,  I  do  not  know.  He  was  frequently  called  tc 
order.  Several  persons,  around  me,  called  him  to  order,  in  the  tone  usual 
in  the  Assembly.  Mr,  Cleaveland,  however,  continued  to  read;  and  1 
would  say,  at  this  time,  that,  during  the  whole  of  his  reading,  and  until 
after  the  nomination  of  Dr.  Beman,  and  the  vote  taken  on  that,  1  called 
"  Order!"  at  short  intervals.  I  did  so,  because  I  believed  it  to  be  my 
official  duty.  He  did  not  address  the  chair,  as  I  understood.  Either 
simultaneously  with  the  rising  of  Mr.  Cleaveland,  or,  as  I  rather  think,  a 
little  after,  and  after  a  cry  of  order,  some  person  rose,  and  moved  that  we 
should  proceed  with  our  regular  business — the  appointment  of  a  Commit- 
tee of  Elections,  to  whom  the  informal  commissions  might  be  referred. 
This  motion  was  entertained  by  me,  as  an  officer  of  the  Assembly,  and  I 
announced  it. 

While  this  was  doing,  Mr.  Cleaveland  was  reading,  but  this  diverted 
my  attention  from  him,  and  for  that  reason,  I  did  not  hear  all  that  he 
said.  What  I  heard  was  to  this  effect.  After  some  remark,  about  not 
being  able  to  get  on  with  the  business,  and  reflections,  as  I  thought. 


,  on       Jj 


\ 


TESTIMONY  FOR  THE  RESPONDENTS.  jgg 

the  chair,  he  said  something  al\out  their  being  advised  b_y  counsel  learned 
in  the  law,  and  securing  a  constitutional  organization  ;  but  these  things 
were  not  in  juxtaposition.     Then  at  the  close,  I  heard  the  phrases  "  not 
discourteous,"  "  fewest  words  and  shortest  time  possible,"  or  something 
to  that  effect.      He  next  moved,  that  Dr.  Beman  should  take  the  chair,  or 
be  Moderator,  I  don't  know  which.     Immediately  he  put  the  question — 
*'  Those  in  favour  of  the  motion  will  please  to  say,  aye,"  or  words  to  the 
same  effect.     There  was  a  ver}^  loud  response :  I  regarded  some  of  the 
voices  as  unusually  loud,  and  there  were  a  few  dragging  votes.     I  hardly 
know  how  to  express  what  I  mean.     There  was  a  general  burst  of  voices, 
and  then  a  few  in  the  rear — ''  Aye!  Aye!"     I  have  an  indistinct  recol- 
lection of  a  few  noes,  simultaneous  with  the  ayes,  either  from  the  gallery, 
or  some  other  quarter  of  the  house.     I  can't  say  from  what  quarter  they 
came,  but  they  were  simultaneous  with  the  ayes,  and  in  answer  to  the 
affirmative  of  the   question.     Upon  this  vote  of  aye,  I  saw  Dr.  Beman 
inove  out  of  the  pew,  the  location  of  which  has  been  already  described, 
six  or  eight  peu's  from  where  I  sat,  into  the  centre  aisle.     As  he  passed 
.into  the  aisle,  a  number  of  persons  from  both  sides  of  the  same  aisle  pass- 
ed into  it,  simultaneously  with  him.     They  fell  into  his  rear,  and  turned 
off  in  an  opposite  du'ection  from  me;  and  the  mass  closed  up,  so  that  in 
a  very  short  time  my  view  was  obstructed.     What  then  passed  I  do  not 
know.     They  seemed   to  advance  the  distance  of  a  few  pevvs.     At  this 
time,  there  was  a  simultaneous  rising  of  all  the  persons  in  the  north  part 
of  the  house,  and   there    was  great  excitement  in  that  quarter.     From 
about  the  place  that  Dr.  Beman  left,  the  great  mass  were  on  their  feet. 
There  were  a  number  standing  on  the  seats  of  the  pews,  and  in  my  judg- 
ment at  the  time,  some  on  the  pew  backs.     I  remember,  that  there  was 
a  small  man  on  the  back  of  a  pew,  supporting  himself  on  the  shoulders 
of  those   in  front  of  him,  and  my  impression  was,  that  he  said  "Aye!" 
louder  than  any  one  else.     I  continued  to   cry  order  during  this  period. 
Some  gentleman  said,  "  Is  it  not  possible  to  have  order?"  or  "  Can   we 
not  have  order?"     I  said,  that  I  had  done  all  I  could  to  preserve  order, 
and  hoped  that  the  disorder  would  be  of  short  duration.     At  this  time  I 
supposed,  that  as  Dr.  Beman,  and  those  with  him,  had  passed  to  the  north 
of  the  house,  we  might  proceed  with  the  organization  of  the  Assembly, 
and  I  was  about  to  put  the  question  on  the  motion  to  appoint  a  Commit- 
tee of  Elections.     But  some  one  said,  "•  We  can't  hear ;  we  had   better 
stop  till  the'  noise  is  over."     I  said  ''  Yes,"  and  formally  announced  to 
the  house,  that  we  would  suspend  our  business  till  the  noise  should  sub- 
side ;  that  it  was  evident  that  the  members  could  not  hear  at  present. 
The  suggestion  came  from  the  neighbourhood  of  the  west  door.      Nearly 
the  whole  of  this  time  I  had  been  on   my  feet,  but  after  this  announce- 
ment I  sat  down.     I  then  heard  several  successive  responses  of  "  Aye!" 
apparently  made  to  questions  put,  but  I  heard  no  question  and  no  nomi- 
nation, except  that  already  stated,  the  nomination  of  Dr.  Beman. 

While  I  was  thus  seated, all  the  members  around  the  chair,  for  a  consi- 
derable distance  in  front,  were  quiet  in  their  seats.  After  some  little 
time  the  actors  in  the  disorder  began  to  move  towards  the  north  door, 
•and  there  being  a  large  mass  of  people  in  the  centre  aisle,  several  passed 
over  the  pews  to  the  north-east  door.  As  they  passed  out  of  the  church, 
somebody  announced^^at  one  of  the  doors,  that  the  General  Assembly  of 


200  PRESBYTERIAN  CHURCH  CASE. 

the  Presbyterian  Church  had  adjourned  to  meet,  forthwith,  in  the  First 
Presbyterian  Church.  After  a  little,  the  same  announcement  was  made 
at  another  door,  and  I  think  also  at  a  third,  in  the  neighbourhood  of  the 
chair.  I  cannot  tell  what  time  these  proceedings  occupied.  If  I  might 
make  a  calculation,  I  should  say,  from  four  to  six  minutes,  but  cannot  pro- 
fess to  speak  with  any  certainty.  I  did  not  look  at  my  watch,  and  state 
this  merely  as  my  belief.  I  ought  to  have  stated,  that,  at  the  time  they 
passed  out,  there  was  a  great  increase  of  noise.  There  was  clapping,  and 
some,  though  not  much,  hissing  from  the  galleries.  Most  of  the  sounds 
seemed  to  be  in  approbation.  After  they  had-left  the  house,  we  proceeded 
to  the  appointment  of  a  Committee  of  Elections,  and  to  the  other  business 
of  the  house.  I  did  not  hear  Mr.  Cleaveland's  motion  reversed.  I  re- 
collect, that  about  the  time  at  which  Mr.  Squier  sat  down,  the  clerks 
having  closed  their  report,  and  the  announcement  in  regard  to  other  com- 
missioners having  been  made,  there  was  a  commissioner,  or  a  person 
claiming  to  be  such,  who  stated,  that  he  came  from  some  Presbytery,  the 
name  of  which  I  have  forgotton,  and  that  he  had  a  commission,  for  which 
he  seemed  to  be  searching  in  his  pockets;  but  he  did  not  find  it,  and 
said,  that  he  must  have  left  it  at  his  lodgings.  I  told  him,  that  when  he 
had  it  the  Committee  of  Commissions  would  attend  to  the  matter.  He 
declared,  I  think,  that  he  had  the  commission  in  the  city,  but  that  he  had 
left  it  at  his  lodgings.  I  cannot  say  certainly,  whether  this  was  Mr. 
Moore.  I  have  some  acquaintance  with  that  gentleman,  but  my  attention 
at  the  time  was  diverted,  and  I  cannot  say  who  it  was.  The  commission 
was  not  afterwards  presented  to  me,  but  I  know  that  Mr.  Moore  subse- 
quently took  his  seat. 

No  cross-examination. 

Dr.  Elliott.  1  ought  perhaps,  to  make  a  statement  which  may  have 
some  bearing  upon  the  case,  in  regard  to  a  subsequent  transaction.  After 
the  appointment  of  a  Committee  of  Elections,  and  after  the  house  was 
fully  organized,  I  was  appointed  one  of  a  committee,  to  draft  a  minute  in 
regard  to  the  organization.  The  history  of  this  transaction  I  will  give,  if 
it  is  desired. 

The  counsel  said,  that  they  did  not  think  this  a  matter  of  an}^  impor- 
tance. 

Mr.  Huhbell  next  offered  to  read  from  the  Supreme  Court  Docket, 
July  term,  1838,  the  entries  of  suits  brought  by  Miles  P.  Squier,  Henry 
Brown,  and  Philip  C.  Hay^  against  the  Moderator  and  clerks  of  the  Old- 
school  Assembly,  &c.,  to  show  the  feeling  of  the  plaintiffs  in  these  suits, 
one  of  whom,  Mx.  Squier,  had  been  examined  as  a  witness  for  the  rela- 
tors. 

Judge  Rogers.  It  is  hardly  worth  while  to  offer  testimony  to  prove 
feeling.  They  all  have  feeling.  I  don't  see  that  this  has  any  thing  to  do 
with  the  case. 

Mr.  Huhbell.  We  are  perfectly  willing  to  acquiesce  in  your  Honour's 
decision,  but  it  was  necessary  to  make  the  offer,  in  order  to  have  the  ad- 
vantage of  it  hereafter. 

Dr.  Elliott — being,  at  his  own  request.,  allowed  to  explain  the  mat- 
ter alhided  to,  at  the  close  of  his  testimony.  It  is  my  impression,  that 
there  were  a  few  other  items  in  that  transaction,  besides  those  mentioned 
on  the  record.     A  committee  to  form  the  minute  was  appointed,  as  is  usual. 


TESTIMONY  FOR  THE  RESPONDENTS. 


201 


Afterwards,. Dr.*Nott  and  myself  were  added  to  that  committee,  and  we 
retired  to  make  up  our  report.  Dr.  Nott  took  a  pen,  and  told  me  to  look 
over  him,  while  he  was  writing,  and  whenever  I  thought  proper,  to  make 
any  suggestion.  Accordingly,  I  suggested  a  number  of  particulars  ;  but 
Dr.  Nott  replied,  that  it  was  not  irnportant  that  every  particular  should 
be  mentioned,  but  that  a  general  sketch,  if  true,  was  all  that  was  necessa- 
ry. I  acquiesced,  though  I  thought  that  several  of  my  suggestions  should 
have  been  attended  to.  I  proposed  to  say,  that  the  noise  had  been  disre- 
putable, but  Dr.  Nott  observed,  that  the  less  said  about  that,  the  better. 
,  There  is  nothing  in  the  record  which  is  not  true.  I  am  willing  to  abide 
by  that  as  far  as  it  goes,  but  in  giving  evidence,  I  have  related  additional 
particulars. 

The  counsel  for  the  relators  here  withdrew  their  objection  to  the  read- 
ing of  the  entries  from  the  docket,  offered  by  Mr.  Hubbell.  In  the  course 
of  some  remarks  made  by  the  counsel,  in  regard  to  this  point,  Judge  Bo- 
get's  remarked,  that  he  had  made  no  note  of  an  exception  to  his  judgment, 
overruling  this  testimony.  Mr.  Ingersoll  said,  that  he  thought  it  had 
been  the  practice  in  that  court,  to  note  every  decision  as  excepted  to,  with- 
out a  formal  exception  being  taken,  and  that  it  was  owing  to  this  under- 
standing, that  his  colleagues  and  himself  had  omitted  to  request  the  court 
to  note  any  exceptions. 

Judge  Rogers.  This  is  not  th.e  practice.  It  is  frequentl}^  asked  in 
bank,  if  exception  was  taken  at  the  time.  (After  some  further  remarks 
from  the  counsel.)  1  do  not  think  that  there  will  be  the  slightest  diffi- 
culty after  this  explanation. 

The  entries  from  the  docket  were  then  read,  as  follows  : 


Supreme  Court,  July  Term,  1S38. 


b.  e. 


J.  Randall, 
Meredith, 
Bradford,  d. 
Kane.  d.  b.  e. 

25th  July,  183S. 
F.  W.  Hubhell. 


J.  Randall, 
Meredilh, 
Bradford,  d.  b.  e. 
Kane,  d.  b.  e. 

27th  July,  16 
F.  W.  Huhbell. 


Miles  P.  Squier, 
56  vs. 

David  Elliott,  John 
McDowell,  John  M. 
Kreb?,  William  S. 
Plumer,  and  Robert 
J.  Bieckinrido-e. 


57        Henry  Brown, 
vs. 
Same  Defendant 


C  Summons  in  case — 
oxit  May  31,  1838. 
"  Summoned." 


Summons  in  casp — 
exit.  May  31,  1838. 
"  Sum.moned." 


J.  Randall,  Philip  C.  Hay,  f  Summons  in  case — 

Meredith,  58  vs.  I  exit  May  31,  183S. 

Bradford,  d.  b.  G.  Same  Defendants.  I  "  Summoned." 

Kane,  d,  b.  e.  i 

9Jih  July,  .1838.  | 

F.  W,  Huhbell.  ^  [ 

Mr.  Hubbell.  We  now  offer  to  introduce  a  series  of  witnesses,  to 
show,  that  several  clergymen,  within  the  bounds  of  the  four  disowned 
Synods,  have,  according  to  the  provisions  of  the  act  of  1837,  applied  to 
neighbouring  Presbyteries,  and  have  been  admitted  into  them.  Perhaps 
this  testimony  falls  wiihin  your  Honour's  previous  exclusion. 

26 


202  PRESBYTERIAN   CHURCH  CASE. 

Judge  Rogers.  I  do  not  sec  the  pertinency  of  it.  It  cannot  alter  the 
character  of  the  original  acts. 

Mr.  Hubbell.  Will  your  Honour  then  please  to  note  an  exception. 
The  witnesses  offered,  are  Mr.  Varnum  Noyes,  Mr.  John  V.  Hughes, 
Mr.  Edwin  Bronson,  and  Mr.  William  Henry  Snyder. 

Mr.  Boardman — re-called.  After  the  Moderator's  call  for  commis- 
sions, the  Rev.  Joshua  Moore  went  up  to  the  clerks'  table,  and  presented 
a  commission.  I  know  only,  that  this  was  subsequent  to  the  call  made 
by  Dr.  Elliott.  It  was,  I  think,  while  either  Mr.  Squier,  or  Mr.  Cleave- 
land  was  on  the  floor,  I  am  not  positive  which.  I  think  it  was  after  Dr. 
Mason  had  taken  his  seat,  though  as  to  this,  I  cannot  speak  positively. 

No  cross-examination. 

Rev.  Robert  J.  Breckinridge — sworn,  with  the  uplifted  hand.  I 
was  a  commissioner  to  the  General  Assembly  of  1838.  I  did  not  hear 
any  of  the  questions,  said  to  have  been  proposed  by  Mr.  Cleaveland,  Dr. 
Beman,  or  Dr.  Fisher.  I  perhaps  ought  to  say,  that  I  should  not  have 
voted,  if  I  had  heard  them.  I  was  present  the  whole  time,  from  the 
rising  of  Dr.  Fatten  till  the  adjournment.  I  was  in  the  house  before  the 
meeting,  nearly  all  the  morning.  I  have  heard  various  statements  made, 
in  regard  to  the  length  of  time  that  elapsed  from  Mr.  Cleaveland's  rising, 
until  the  adjournment.  I  can  say,  only,  that  it  was  a  very  short,  and 
very  confused  space  of  time.  I  should  have  said,  that,  from  the  time, 
when  Mr.  Cleaveland  rose,  until  the  confusion  subsided,  after  the  New- 
school  party  had  left  the  house,  not  more  than  three  or  four  minutes 
passed.  I  have  been  in  poor  health,  which  has  prevented  my  attendance 
here,  and  I  do  not  know  who  have  been  sworn.  I  cannot,  therefore,  an- 
swer, whether  all  of  the  members  of  the  Assembly  of  1838,  who  are  pre- 
sent, have  been  examined.  Dr.  Alexander  W.  Mitchell,  was  a  member, 
and  I  think  I  heard  him  say,  that  he  had  not  been  sworn.  I  heard  a  part 
of  Mr.  Cleaveland's  paper.  My  position  was  that  which  one  or  two 
gentlemen  have  described.  I  was  at  some  distance  from  Mr.  Cleaveland. 
I  heard  the  first  few  sentences  that  he  uttered,  but  nothing  distinctly,  af- 
ter he  moved  that  Dr.  Beman  should  take  the  chair.  I  recollect  that  Pro- 
fessor Maclean  was  a  commissioner,  and  he  has  not  been  sworn.  I  did 
not  hear  Mr.  Cleaveland  put  any  question  upon  the  nomination  of  Dr. 
Beman,  and  if  I  had  been  disposed,  I  could  not  have  voted  intelligently 
upon  any  motion,  but  the  first.  Whether  this  motion  was  reversed,  or 
not,  I  don't  know.  I  do  not  know  whether  any  of  the  other  questions 
were  reversed:  I  heard  nolliing,  except  the  vote  of  aye.  To  the  liest  of 
niy  recollection,  I  heard  no  negative  vote  on  any  question.  M}'  own 
state  of  mind,  perhaps,  influenced  my  perceptions. 

Cross-examined  by  Mr.  Randall.  I,  perhaps,  did  not  give  so  much 
attention  to  tiie  proceeding,  as  I  would  have  done,  if  I  had  viewed  them 
in  a  different  light. 

Dr.  Jllexande.r  TV.  Mitchell — sruorn.  I  was  a  commissioner  to  the 
General  Assembly  of  1838.  I  took  my  position  nearly  opposite  the  east 
door,  in  the  west  side  of  the  east  aisle.  Mr.  Cleaveland  was  in  a  pew 
opening  on  the  east  side  of  the  middle  aisle,  in  the  rear  of  the  one  on  a 
line  with  that  in  which  I  sal;  my  seat  was,  therefore,  one  pew  in  advance 
of  the  line  of  his.  I  was  about  half  way  up  my  pew,  and  he  about  1  wo- 
Ihirds  of  the  way  up  his.   Ho  rose,  and  cither  made  some  observations,  or 


TESTIMONY  FOR  THE  RESPONDENTS.  203 

read  from  a  paper.  At  this  moment  my  attention  was  diverted  to  a  gen- 
tleman in  the  pew  before  me.  When  I  turned  again,  Mr.  Cleaveland's 
back  was  towards  me.  The  circumstance  which  diverted  my  attention 
was,  that  a  gentleman,  in  the  pew  immediately  in  front  of  me  was  stand- 
ing up  on  the  seat.  I  asked  him  if  he  was  a  member;  he  said  he  was. 
Shall  I  go  on? — (An  objection  being  made  to  his  proceeding  to  state  what 
had  passed  between  himself  and  the  gentleman  on  the  seat.)  After  this 
distraction  I  turned,  and  Mr.  Cleaveland's  back  was  towards  me.  When 
he  finished,  he  was  facing  the  north-west  part  of  the  house.  He  moved 
that  Dr.  Beman  should  take  the  chair  or  be  Moderator — I  don't  know 
which.  When  he  had  made  the  motion,  there  was  a  loud  response  of 
"  Aye!"  The  gentleman  on  the  seat  in  front  of  me  answered  in  a  very 
'loud  voice.  He  was  not  the  little  man.  I  don't  believe  that  the  negative 
of  the  question  was  put:  I  did  not  hear  it  called  for.  I  heard  no  negative 
votes,  but  there  was  a  great  deal  of  noise  and  confusion  in  that  part  of  the 
house.  I  did  not  vote  on  Mr.  Cleaveland's  motion.  I  did  not  consider 
myself  as  taking  any  part  in  the  proceedings.  I  regarded  it  as  a  disorder. 
I  did  not  consider  any  thing  before  the  house  at  that  time.  The  Modera- 
tor cried  "  Order!"  and  a  great  many  in  the  pew  with  me  called  to  or- 
der. I  did  not  myself  call.  After  the  vote  of  aye,  Mr  Cleaveland  made 
another  motion  for  the  appointment  of  temporary  clerks.  I  understood 
him  to  nominate  Mr.  Gilbert,  whom  I  had  before  seen,  and  Dr.  Mason,  of 
whom  I  had  no  knowledge  until  that  day.  I  did  not  hear  the  question 
reversed:  I  do  not  believe  it  was  reversed;  for,  if  it  had  been,  I  should 
have  heard  it,  as  I  was  contiguous  to  the  place.  Afterwards  there  was  an 
"Aye!"  in  about  the  same  tone  as  before.  The  man  on  the  seat  in  front 
of  me  yelled  to  it.  His  "Aye!"  was  not  given  in  the  manner  usual  in 
deliberative  assemblies:  it  was  more  like  the  yell  of  an  Indian,  than  of  a 
white  man.  At  that  time  Dr.  Beman  moved  out  into  the  aisle,  and  there 
was  a  rising,  all  around,  of  the  persons  in  that  quarter  of  the  house. 

I  cannot  say  that  I  know  much  of  what  occurred  after  he  got  into  the 
aisle,  for  there  were  so  many  persons  standing  up  around,  that  I  could 
not  see,  and  I  sat  down.  I  heard  the  ayes  called  two  or  three  times.  I 
remember  that,  as  they  were  going  out,  somebody — not  the  man  on  the 
seat  in  front  of  me — announced  that  the  General  Assembly  would  meet, 
forthwith,  in  the  lecture-room  of  the  First  Presbyterian  Church.  This 
was  repeated  two  or  three  times,  at  the  different  doors — the  last  time,  at 
the  east  door  of  the  house,  by  a  gentleman  who  is  present.  It  was  either 
that  afternoon,  or  the  next  morning,  that  I  first  heard  of  Dr.  Fisher's  ap- 
pointment. The  whole  transaction  occupied  but  a  very  short  space  of  time: 
I  can't  say  how  long,  but  I  suppose  about  five  minutes — not  more.  There 
was  a  confused  noise  in  both  galleries  and  in  the  northern  part  of  the 
church. 

No  cross-examination. 

Mr.  ^ilexander  Symington — sivorn,  with  the  uplifted  hand.  I  was 
a  member  of  the  Assembly  of  1838 — a  lay  delegate.  I  attended  at  the 
organization  of  that  Assembly,  and  sat  in  a  pew  on  the  west  side  of  the 
western  aisle,  nearer  the  pulpit  than  the  middle  of  the  house,  and  nearly 
opposite  to  the  pew  occupied  by  Mr.  Cleaveland  and  Dr.  Beman.  I  saw 
and  heard  Mr,  Cleaveland  read  a  paper ;  that  is,  I  heard  a  good  many 
words,  but  I  did  not  ipliarge  my  memory  with  them.      I  heard  distinctly 


204  PRESBYTERIAN  CHURCH  CASE. 

the  phrase,  "counsel  learned,  in  the  law."  T  heard  a  motion  to  appoint 
Dr.  Beman,  Moderator,  and  a  vote  in  the  affirmative  on  that  motion.  I 
did  not  hear  the  question  reversed.  I  am  unable  to  say  whether  there 
were  any  negative  votes.  If  there  were,  I  have  forgotten  the  circumstance. 
I  did  not  vote  on  that  question,  or  on  any  one  put  by  Mr.  Cleaveland,  or 
subsequently  by  Dr.  Beman  or  Dr.  Fisher.  I  did  not  hear  .the  motion  to 
appoint  Dr.  Fisher  at  all^  nor  did  I  know  of  his  appointment,  until  after 
the  morning  sessian,  or  perhaps  that  day,  though  i  think  I  did  some  time 
that  day. 

No  crofts-exaynination. 

Mr.  [Villiam  Hamilton — sworn.  I  attended  at  the  organization  of 
the  General  Assembly  of  1S3S.  I  did  not  know  Mr.  Cleaveland,  but  1 
heard  a  gentleman,  who  I  was  afterwards  told  was  he,  read  a  paper.  I 
h^ard  him  make  a  motion,  or  read,  or  say  something.  He  was  looking, 
on  a  paper  which  he  held  in  his  hand.  I  was  on  the  east  side  of  the  church, 
in  a  pew  a  little  to  the  north  of  the  east  door.  I  could  not  hear"  what  he 
read  or  said.  There  were  a  great  number  of  gentlemen  in  my  vicinity, 
byt  one  only,  that  I  knew.  Mr.  Cleaveland  after  reading  a  portion  of  the 
paper,  turned  partly  round  from  the  Moderator,  and  the  gentlemen  in  his 
vici!.>>ty  rising,  I  could  not,  after  that,  see  him  distinctly.  I  heard  a  very 
loud  vote  of  aye.  There  were  several  ayes  close  by  me,  in  the  pew  where 
I  was  sitting,  and  several  in  the  pew  before  me.  The  person  that  I  knew 
voted  aye.  That  gentlemen  was  the  Rev.  Mr.  Duffield.  At  the  time  he 
said  "Aye!"  his  face  was  partly  towards  Mr.  Cleaveland,  so  that  I  could 
see  the  side  of  it.  He  was  sitting  in  the  pev/  before  me.  After  the  ayes 
were  over,  another  person  who  had  sat  beside  Mr.  Duffield,  got  up  on  the 
seat  before  me.  Mr.  DuflBeld  had  a  cane  in  his  hand,  and  he  knocked  it 
down  on  the  seat,  and  said,  "That  was  done  according  to  law,  as  slick  as 
could  be."  He  said  this  three  times,  looking  at  me,  and  those  around  me, 
and  seeming  very  much  pleased.  In  a  few  moments,  Mr.  Duffield,  and 
the  others  in  my  vicinity,  left  tlieir  seats,  and  went  north,  but  I  still  re- 
mained sitting. 

In  the  mean  time,  the  crowd  Jn  the  middle  aisle  moved  tovi?ard  the  north 
and  east  doors.  I  heard  then  a  loud  '  'aye!"  and  a  great  part  of  those  who 
had  moved  towards  the  doors,  passed  out  into  the  lobby.  A  gentleman 
was  standing  at  the  door,  and  cried  out  with  a  loud  voice,  that  the  General 
Assembly  of  the  Presijyterian  Church  had  adjourned  to  meet;  forthwith, 
in  Mr.  Barnes'  church.  Another  person  announced  the  same  thijiig  at  the- 
other  doors,  first  at  the  north-west,  and  then  at  the  north-east  door,  re- 
peating the  same  words.  Afterwards,  a  person  made  his  appearance  im- 
mediately before  me,  in  the  east  door,  and  proclaimed  that  Ibe  General 
Assembly  had  adjourned  to  meet  in  Mr.  Barnes'  church.  It  was  the 
Rev.  Mr.  Phelps. 

Cross-cxamiJied  by  Mr.  Bandall.  I  was  not  a  commissioner  to  the 
Assembly.  The  gentleman  of  whom  I  speak  was  the  Rev.  Mr.  George 
Duffield.  I  had  seen  him  in  the  Assembly  of  1837:  whether  he  was  a 
member  or  not  I  don't  know.  I  think  I  saw  him  in  the  Assembly,  sit- 
ting amongst  the  members,  but  I  can't  say  that  I  saw  him  taking  any 
part  in  the  proceedings.  I  have  seen  him  perhaps  four  or  five  times,  but 
have  never  spoken  to  him.  I  know  that  he  is  not  in  this  city — that  is, 
that  he  has  no  pastoral  charge  here.     I  don't  recollect  whether  he  carried 


TESTIMONY  FOR  THE  RESPONDENTS.  205 

a  cane  when, I  saw  him  before.  I  remember  distinctly,  that  at  the  time  of 
which  I  have  spoken,  he  had  a  cane,  and  that  he  knocked  with  it  several 
times. 

Mr.  Joseph  B.' Mitchell — sivo7m,  ivith  the  uplifted  hand.  lam 
Cashier  of  the  Mechanics'  Bank  in  this  city.  I  attended  the  church  in 
Ranstead  Court  at  the  organization  of  the  Assembly  of  1S38.  I  sat  in 
a  pew  nearly  opposite  the  soutli-east  door,  but  afterwards  removed,  and 
stood  in  the  aisle  opposite  the  pew,  for  the  whole  time,  except  a  few  mo- 
ments when  I  walked  round  to  the  clerks'  desk.  I  should  say  that  I  was 
ten  or  twelve  feet  from  Mr.  Cleaveland.  If  I  recollect,  he  was  near  the 
dividing  line  of  the  eastern  block  of  pews,  three  or  four  pews  back  of 
mine.  I  saw  him  with  a  paper  in  his  hand,  and  he  appeared  to  be  read- 
ying it',  but  I  did  not  hear  its  contents.  I  heard  a  word  occasionally,  and 
understood  Mr.  Cleaveland's  object,  but  can't  give  any  account  of  it.  At 
first  his  face  was  towards  the  Moderator  and  his  side  towards  me.  I  think 
that  afterwards  he  turned:  from  the  rising  of  persons  between  and  the 
confusion,  I  lost  sight  of  him,  and  have  no  recollection  of  seeing  him  at 
the  conclusion  of  his  paper.  I  think  I  heard  something  which  seemed  to 
be  a  motion,  in  which  Dr.  Beman's  name  was  involved,  but  I  don't  know 
by  whom  it  was  made.  I  thought  that  it  was  for  him  to  be  Moderator, 
or  to  take  the  chair — I  think  to  be  Moderator.  I  did  not  hear  the  words 
perfectly.  Very  soon  after  this  motion,  I  heard  a  number  of  voices  cry- 
ing, "aye!"  in  a  very  loud  tone.  The  noise  in  the  house  increased.  I 
did  not  hear  the  question  reversed — certainly  there  were  no  negative 
votes  in  the  part  of  the  church  which  I  occupied:  I  heard  no  negative 
votes  at  all.  Of  what  followed  I  can  give  no  definite  account.  I  sup- 
pose that  motions  were  put,  for  I  heard  loud  votes  of  "aye!"  but  I  did 
not  know  what  had  taken  place  till  next  day.  I  think  it  was  on  the  suc- 
ceeding day,  that  I  first  learned  that  Dr.  Fisher  had  been  appointed  Mode- 
rator. I  hitve  a  brother  who  is  a  clergyman  in  Virginia — Jacob  Mitchell. 
I  was  not  a  member  of  the  Assembly.  My  brother  has  not  been  in  the 
city,  I  think,  for  a  few  years. 

Cross-examined  by  Mr.  Randall  The  last  of  my  brother's  official 
acts  was  with  the  New-school.  When  I  last  saw  him,  he  sympathized 
with  the  New-school,  and  was  said  to  be  the  author  of  a  protest,  in  the 
Synod  of  Virginia,  against  the  proceedings  of  the  other  party.  I  don't 
like  party  names,  but  I  am  ranked  on  the  Old-school  side. 

Rev.  S.  Beach  Jones — sworn,  with  the  uplifted  hand.  I  attended 
the  organization  of  the  Assembly  in  183S,  in  the  church  in  Ranstead 
Court.  I  was  a  delegate  from  the  Presbytery  of  Mississippi.  I  was 
seated  in  the  fourth  or  fiftli  pew  from  the  front,  on  the  west  side  of  the 
middle  aisle— I  should  think,  about  ten  or  twelve  feet  from  Mr.  Cleave- 
land. I  think  Mr.  Cleaveland,  and  the  gentleman  associated  with  him, 
were  in  about  the  seventh  pew,  on  the  east  side  of  the  aisle,  in  a  diagonal 
direction  from  me.  I  heard  him  read  a  paper,  but,  though  so  near,  could 
not  hear,  distinctly,  its  contents.  I  heard  him  make  a  motion,  however, 
that  Dr.  Beman  should  be  either  Moderator  or  Chairman — one  of  the  two, 
but  I  cannot  say,  certainly,  which.  A  rather  tumultuous  cry  of  "  aye! 
aye!"  succeeded  that  motion.  I  heard  no  reversal  of  the  question,  al- 
though I  sat  at  such  a  short  distance.  I  heard  no  reversal,  and,  I  think, 
no  nays :  certainly  tli^ere  were  none  in  my  region,  and  I  was  sitting  in 


206  PRESBYTERIAN  CHURCH  CASE. 

the  body  of  the  house.  He  then,  I  think,  made  a  motion,  relative  to  the 
appointment  of  clerks.  I  am  not  certain,  now,  that  I  heard  the  names  of 
the  clerks  at  the  time:  I  presume  that  I  did,  but  should  not  like  to  affirm 
it.  Immediately  subsequent  to  this,  I  think,  was  the  removal  of  the  body 
of  persons,  who  seemed  to  be  surrounding  Mr.  Cleaveland,  to  the  lower, 
or  north  part  of  the  house.  The  leaders,  or  those  who  seemed  to  be  the 
leaders,  appeared  to  be  congregated  in  the  aisle,  where  they  seemed  to 
form  a  sort  of  nucleus,  but  of  this  I  cannot  speak  with  certainty.  I  heard 
nothing  distinctly  after  this,  excepting  ayes;  and  then,  some  person  an- 
nouncing, that  the  General  Assembly  of  the  Presbyterian  Church  had  ad- 
journed to  meet,  I  think  he  said,  in  the  church  on  Washington  Square; 
which  announcement  was  repeated  by  some  person,  or  persons,  at  the  east 
door  of  the  house.  It  was  a  scene  of  such  confusion  and  tumult,  I  did 
not  measure  the  time  so  accurately,  as  I  should  have  done,  under  ordinary 
circumstances.  It  was  of  very  short  duration — only  a  few  minutes 
elapsed.  I  cannot  say,  with  confidence,  when  it  was,  that  I  first  heard  of 
t)r.  Fisher's  appointment.  It  was  either  that  afternoon,  on  my  return 
to  the  Assembly,  or  next  day — certainly  not,  as  I  think,  until  the  after- 
noon. It  was  my  impression,  that  Dr.  iJeman  had  been  Moderator.  I 
did  not  vote.  I  had  no  opportunity  to  vote  upon  the  side  that,  of  course, 
i  should  have  voted  upon,  if  I  had  voted  at  all. 

Cross-examined  by  Mr.  Randall.  I  am  still  connected  with  the 
Presbytery  of  Mississippi,  unless  my  dismission  from  that  Presbytery 
was  granted  at  its  last  meeting,  as  I  requested.  I  am  now  the  pastor  elect 
of  a  church  in  Bridgeton,  New  Jersey,  which  belongs  to  the  Presbytery 
of  Philadelphia.  I  presume  that  my  dismission  is  now  on  Its  way  to  thia 
place. 

Mr.  Samuel  Jlgnew — sworn,  tuith  the  uplifted  hand,  I  was  not  a 
commissioner  to  the  General  Assembly  of  1838,  but  I  attended  its  orga- 
nization. My  position  was  near  the  south-west  door.  I  saw  Mr.  Cleave- 
land rise,  with  a  paper  in  his  hand,  and  he  proceeded  to  read  amid  a  great 
deal  of  confusion.  I  did  not  hear  what  he  said;  the  confusion  was  so 
great  as  to  render  it  impossible  for  me  to  hear.  I  heard  him  make  a 
motion,  and  the  purport  of  it  was,  that  Dr.  Beman  should  take  the  chair, 
or  preside,  or  be  Moderator,  I  don't  exactly  know  which.  I  heard  him 
call  for  the  affirmative  votes,  but  I  heard  no  reversal  of  the  question,  and 
my  impression  is,  that  it  was  not  reversed;  and  the  succeeding  motion 
was  so  immediate,  that  I  think  there  was  not  time  to  have  reversed  it. 
The  next  thing  I  heard,  was  what  seemed  to  be  another  motion,  but  I 
cannot  say  what  it  was,  the  confusion  was  so  great.  A  great  many  per- 
sons were  standing  in  the  church,  and  the  confusion  prevented  both  my 
seeing  and  hearing.  After  this,  a  number  of  motions  were  put;  that  is,  I 
heard  loud  cries  of  "aye!"  and  therefore  presumed  that  motions  had 
been  put,  but  cannot  tell  what  they  were.  I  heard  no  motion  made  to 
put  Dr.  Fisher  in  the  chair,  and  I  did  not  know,  that  he  occupied  that 
position  until  the  following  day.  I  remember  the  proclamation  of  an 
adjournment  to  the  session-room  of  the  First  Presbyterian  Church.  I 
should  say,  that  the  whole  process,  from  the  time  that  Mr.  Cleaveland 
rose,  until  the  proclamation  of  the  adjournment,  occupied  from  live  to  ten 
minutes.     I  heard  some  votes  from  the  gallery. 


TESTIMONY  FOR  THE  RESPONDENTS.  207 

Cross-exnmhied  by  Mt\  Randall.  I  am  a  member  of  Dr.  McDowell's 
church  in  this  city — the  Central  Church. 

il/r.  Edward  C.  No7Tis — sworn.  I  attended  the  organization  of  the 
General  Assembly  of  the  Presbyterian  Church,  in  the  year  1838.  I  was 
standing  in  the  door  near  the  pulpit,  on  the  graveyard — the  south-west 
door,  I  saw  Mr.  Cleaveland  rise  with  a  paper  in  his  hand.  He  appeared 
as  if  he  were  reading  from  the  paper.  He  read  in  a  very  loud  voice,  and 
I  could  hear  what  he  said,  but  do  not  now  remember  what  it  was.  After 
he  had  finished  the  paper,  as  I  presumed,  he  laid  it  aside,  and  moved  that 
Dr.  Beman  should  take  the  chair,  I  think  I  heard  a  very  loud  affirmative 
vote  from  the  galleries,  as  well  as  from  the  lower  part  of  the  church,  I 
did  not  hear  the  question  reversed,  and  do  not  now  recollect  that  I  heard 
,  any  negative  votes.  The  next  thing  I  heard,  was  some  persons  nominated 
for  clerks,  but  by  whom,  I  did  not  know.  The  next  thing  that  I  heard 
distinctly,  was  the  motion,  that  the  General  Assembly  should  adjourn  to 
the  First  Presbyterian  Church,  on  Washington  Square.  Then  those  col- 
lected in  the  rear  of  the  house,  I  don't  know  how  many,  arose  and  went 
out.  Somebody,  in  a  loud  voice,  announced,  that  the  General  Assembly 
of  the  Presbyterian  Church — in  the  United  States  of  America,  I  think  he 
added — had  adjourned  to  meet  in  the  First  Presbyterian  Church.  I  should 
say,  that  the  whole  proceeding  did  not  occupy  more  than  twenty  minutes — 
probably  not  that  long. 

Cross-examined  by  Mr.  Randall.  I  was  standing  part  of  the  time 
between  the  door  and  the  stove,  and  part,  between  the  stove  and  the  backs 
of  the  pews.  I  was  among  the  furthest  back  of  those  inside  of  the  house: 
there  were  some  outside.  Those  motions,  which  I  heard,  were  made  in  a 
very  loud  voice.  I  was  not  a  member  of  the  Assembly.  I  am  a  member 
of  the  Episcopal  Church,  and  feel  no  interest  in  the  affairs  of  the  Presby- 
terian Church.  I  went  to  the  house  in  Ranstead  Court,  at  that  time,  from 
mere  curiosity. 

Rev  John  Maclean — sworn.  I  was  a  commissioner  to  the  General 
Assembly  of  1838.  I  did  not  hear  Mr.  Cleaveland's  motion  distinctly, 
but  thought  it  was  to  this  effect — that  Dr.  B. — I  supposed  Dr.  Beecher, 
.should  take  the  chair — I  don't  recollect  whether  he  used  the  words  "  take 
the  chair"  or  not,  but  it  was  something  to  that  purpose.  This  is  all  I 
heard  of  what  Mr.  Cleaveland  said.  I  heard  very  distinctly  the  response, 
"Aye!"  There  was  no  reversal  of  the  question,  and  no  negative  votes. 
I  did  not  vote  upon  the  question:  I  had  no  opportunity,  and  could  not,  if 
I  had  felt  so  disposed,  I  am  perfectly  willing  to  say,  what  I  would  have 
done,  if  I  Aac^  heard.  I  am  in  doubt,  whether  I  heard  the  motion,  in 
regard  to  Dr.  Mason  and  Mr.  Gilbert,  but  I  certainly  heard  nothing  subse- 
quent to  that,  I  did  nto  know  that  Dr.  Fisher  had  been  appointed  Moderator, 
till  the  next  day,  and,  not  until  the  afternoon,  or  the  next  morning,  that 
Dr.  Beman  had  been  called  to  the  chair.     I  supposed  it  was  Dr.  Beecher. 

Cross-examined  by  Mr.  Randall.  I  was  a  member  of  the  Assembly 
of  1838,  and  took  part  in  the  debate,  whether  the  words,  "  disorder,"  "  tu- 
mult," and '•' violence,"  ought  to  be  used  in  the  minute.  1  objected  to 
the  word  "violence,"  for  the  reason,  that  some  persons  might  understand 
by  it,  that  there  had  been  personal  violence,  something  approaching  to  an 
assault  and  battery.  Further,  I  opposed  it,  because  I  thought  we  ought  to 
state  the  simple  facts,  without  characterizing  them. 


208  PRESBYTERIAN  CHURCH  CASE. 

Mr.  Randall.  Did  you  not  say,  in  the  course  of  that  debate,  that  you 
thought  there  had  been  no  more  disorder,  than  might  naturally  have  been 
expected  under  such  circumstances? 

Prof.  Maclean.  1  used  words  of  somewliat  analogous  import.  I  said 
it  was  true  there  Iiad  been  violence,  in  the  sense  intended,  but  no  violence, 
in  the  sense  in  which  the  word  might  be  understood.  And  I  made  a  re- 
mark to  this  effect:  that  there  had  been  as  little  disturbance  made  by  the 
members  of  the  New-school  party,  as  had  been  possible,  in  that  state  of 
things.  The  word  was  not  retained,  by  the  casting  vote  of  the  speaker: 
my  impression,  is  that  I  was  in  a  very  small  minority.  My  object  was, 
to  have  a  simple  narrative  of  what  had  occurred,  without  any  comment; 
for  I  had  a  respect  for  the  motives  of  my  brethren  of  the  New-school.  I 
thought,  that  the  tumult  could  not  be  charged  on  them,  though  they  were 
the  occasion  of  it. 

Re-examined  by  Mr.  IngersolL  There  were  loud  exclamations  of 
'^ aye!"  in  response  to  m.otions  which  I  supposed  were  put,  and  there 
was  great  excitement.  My  remark  was,  that  in  that  condition  of  things, 
the  disturbance  had  not  been  greater,  than  was  natural  under  the  circum- 
stances. I  thought  the  proceeding  disorderl}^ :  I  have  never  thought  it 
otherwise.  My  object  was,  to  defend  the  motives  of  my  brethren.  To- 
wards the  conclusion  of  the  scene,  there  was  clapping  and  some  hissing. 

By  Air.  Randall.  I  did  not  know  any  of  the  individuals  who  clapped 
or  hissed,  but  suj)posed  .the  clapping  was  in  approbation,  and  the  hissing 
in  disapprobation. 

Mr.  Randall.  Would  not  the  friends  of  the  measure  be  most  disposed 
to  show  approbation,  and  the  opponents  of  it  disapprobation  ? 

Prof.  Maclean.     As  an  abstract  proposition,  I  may  say  they  would. 

By  Mr.  Ilubbell.  I  am  not  aware  that  there  was  any  disorder  among 
the  Old-school. 

By  Mr.  Randall.  I  think  some  of  the  commissioners  were  disorderly, 
but  I  saw  no  clapping  or  hissing  from  any  member  of  the  Assembly. 
There  was  certalnl}?^  disorder.  I  supposed  it  was  a  mere  ex-par le  organ- 
ization. The  voices  of  the  New-school,  in  voting,  were  raised  altogether 
above  the  pitch  necessar}'  to  their  being  heard.  The  voice  naturally  rises 
in  loudness  with  excitement. 

By  Mr.  Preston.  I  am  almost  confident,  thatJNIr.  Dufilcld  was  not  a 
member  of  the  Assembly. 

Mr.  Randall     He  was  not:  the  record  shows  that. 

Mr.  Charles  F.  fVorrell — sworn,  ivith  the  uplifted,  hand.  I  was 
present  at  the  organization  of  the  General  Assembly  of  1S3S,  as  a  spec- 
tator. I  was  in  the  house  and  seated,  by  nine  o'clock  in  the  morning,  as 
near  as  I  remember.  I  heard  Mr.  Cleaveland's  motion.  My  seat  was 
in  the  east  gallery,  in  the  front  pew,  the  first  after  those  that  ascend  from 
the  pulpit.  Mr.  Cleaveland  rose  with  a  paper  in  his  hand,  having  first 
consulted  with  a  iew  persons  in  his  own  and  the  adjoining  pews.  He 
commenced  reading — that  is,  he  looked  on  the  ])aper  and  I  supposed  he 
was  reading.  After  reading  a  few  words,  he  turned  his  face  towards 
the  west  part  of  the  church.  I  could  have  heard  most  of  the  words  that 
he  uttered,  but  my  attention  being  distracted  by  the  confusion  that  was 
in  the  house,  I  cannot  tell  exactly  what  he  said.  His  preamble  was  very 
similar,  1  think,  to  the  preamble  of  Dr.  Patton.     During  the  reading,  he 


TESTIMONY  FOR  THE  RESPONDENTS.  209 

turned  round,  till  the  side  of  his  face  was  towards  me  and  his  back  almost 
towards  Dr.  Elliott.  He  appeared  very  much  agitated.  His  last  words 
were  those  already  so  often  proved — that  counsel  learned  in  the  law  had 
informed  them,  that  it  was  necessary  that  morning,  to  organize  themselves, 
and  that  they  would  do  it  in  the  fewest  words  and  the  shortest  time  pos- 
sible. He  was  then  facing  the  north-west  corner  of  the  house.  He 
moved  that  Dr.  Beman  should  take  the  chair,  and,  in  the  same  breath,  put 
the  motion.  By  this  time  all  the  persons  in  the  part  of  the  house  north 
of  Mr.  Cleaveland  had  arisen,  and  some  were  standing  on  the  seats,  and 
some  on  the  tops  of  the  pews.  With  one  accord,  there  was  a  general 
yell  of  "Aye!"  and  there  was  one  aye  louder  than  the  rest.  That  one, 
so  far  as  I  could  discover,  came  from  Dr.  Beecher  of  Cincinnati — the  old 
gentleman.  The  side  of  his  face  was  towards  me,  and  so  far  as  I  could 
tell,  it  was  Dr.  Beecher.  There  was  considerable  clapping  and  some 
hissing.  Some  votes  came  from  the  galleries  on  both  sides  of  the  house. 
The  motion  was  not  reversed.  Mr.  Cleaveland  then  moved,  that  Mr. 
Gilbert  and  Dr.  Mason  should  be  temporary  clerks,  which  motion  was 
immediately  put  without  any  negative.  Dr.  Beman  then  requested  that 
they  should  retire  to  the  back  part  of  the  house.  He  stepped  out  of  the 
pew  into  the  aisle,  but,  at  the  same  time,  other  persons  rushed  out  of  the 
pews  on  both  sides,  so  that  he  could  not  go  very  far  and  stopped.  He 
then  called  for  motions,  and  some  person,  I  don't  know  who,  moved,  that 
Dr.  Fisher  should  be  appointed  Moderator.  This  motion  was  put,  but  not 
reversed.  I  heard  then  Mr.  Gilbertand  Dr.  Mason  nominated  for  clerks, 
and  that  motion,  also,  was  put  without  any  reversal  that  I  heard.  It 
was  then  moved  that  they  should  adjourn  to  the  First  Presbyterian 
Church:  the  motion  was  put,  but  I  heard  no  negative.  There  were  some 
noes  at  the  same  time,  or  nearly  at  the  same  time  with  the  ayes,  in  an 
under  tone.  Then  it  was  announced,  that  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America,  had  adjourned  to 
meet  in  the  lecture-room  of  the  First  Presbyterian  Church,  and  the  whole 
body,  with  about  one  third  of  the  audience  passed,  out  at  the  north  door 
as  rapidly  as  possible.  When  they  were  nearly  all  gone,  Mr.  Edward 
Beecher  proclaimed,  that  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America,  had  adjourned  to  meet  in  the 
First  Presbyterian  Church,  and  requested  all  the  delegates  to  attend. 
Some  person  made  the  same  proclamation  at  the  east  door,  but  I  could 
not  see  who  he  was ;  during  which  the  appointment  of  a  Committee  of 
Commissions,  which  had  been  moved  some  time  before,  was  under  con- 
sideration, and  Mr,  Breckinridge  had  the  floor. 

Cross-examined  by  Mr.  Randall.  I  was  merely  a  spectator.  Prince- 
ton, New  Jersey,  is  my  present  place  of  residence:  before,  I  have  lived 
in  Lancaster  county,  in  this  state.  I  am  a  student  in  the  Princeton  Theo- 
logical Seminary.  Dr.  Beecher,  at  the  time  he  made  the  loud  cry  of 
"  Aye!"  was  standing  on  the  seat,  or  partly  on  the  seat  and  partly  on  the 
back,  or  on  the  back,  of  the  same  pew  in  which  Mr,  Cleaveland  had  been 
sitting,  or  of  one  near  it,  I  was  almost  right  over  his  head.  I  have  never 
lived  in  the  same  town  with  Dr.  Beecher,  but  I  had  seen  him  and  heard 
him  make  several  short  speeches  in  the  Convention,  at  the  First  Presby- 
terian Church.  Still,  I  do  not  say  certainly  he  was  the  man.  I  had  never 
seen  him  before  that  visk  to  Philadelphia,  and  have  not  seen  him  since. 

27 


210  PRESBYTERIAN  CHURCH  CASE. 

I  feel  confident  that  it  was  Dr.  Beecher,  but  might  possibly  be  mistaken. 
I  am  as  confident  of  its  being-he  as  I  could  be,  after  having  before  seen 
him  only  a  few  times,  and  then  seeing  but  the  side  of  his  face.  I  know, 
by  report,  that  Dr.  Beecher  is  now  in  the  West,  that  he  is  not  here.  I 
should  think  the  person  I  took  for  him  was  about  sixty  years  of  age,  or 
between  fifty  and  sixty,  or  perhaps  above  sixty.  Dr.  Beecher's  manner 
is  rather  mild  and  persuasive. 
Court  adjourned. 

FRIDAY  MORNING,  March  15th— 10  o'clock. 

Dr.  McDowell — re-called.  We  received,  in  the  Committee  of  Com- 
missions, and  enrolled  as  unexceptionable,  two  hundred  and  twelve  names, 
and  we  reported  seven  more  to  go  to  the  Committee  of  Elections,  viz: 
From  the  Presbytery  of  Montrose,  the  Rev.  Adam  Millar;  from  the  Pres- 
bytery of  Bedford,  the  Rev.  Robert  G.  Thomson;  and  from  the  Presby- 
tery of  Richmond,  a  Mr.  Elliott — these  all  being  without  their  commis- 
sions. From  the  Presbytery  of  New  Castle,  General  Cunningham,  a 
ruling  elder,  whose  commission  wanted  the  signature  of  the  Moderator. 
From  the  Presbytery  of  Londonderry,  the  Rev.  Ephraim  P.  Bradford, 
whose  commission  wanted  the  signature  of  the  clerk.  Two  persons  from 
the  new  Presbytery  of  Green  Brier,  Mr.  David  R.  Preston,  minister,  and 
Mr.  Thomas  Beard,  elder.  We  reported  two  hundred  and  twelve  on  the 
roll,  and  these  seven,  to  go  to  the  Committee  of  Elections,  whenever  one 
should  be  appointed — in  all,  two  hundred  and  nineteen.  I  can  tell  how 
it  was  in  regard  to  Mr.  Moore.  When  the  Moderator  asked,  that  com- 
missions not  yet  presented  should  be  brought  forward,  immediately,  or 
soon  after,  Mr.  Moore  came,  and  laid  his  commission  on  the  clerks'  table; 
it  was  examined  by  the  Committee  of  Commissions,  after  the  retiring 
body  had  withdrawn,  and  the  confusion  had  subsided,  and  reported  by 
them.  I  am  confident,  that  he  presented  the  commission  that  morning, 
and  his  name  is  on  the  minute,  as  one  of  those  called  and  recorded  pre- 
sent in  the  afternoon.  The  roll  was  called  in  the  afternoon,  and  there 
were  one  hundred  and  fifty-four  that  answered  to  their  names.  These 
included  six  of  the  seven,  whose  commissions  had  gone  to  the  Committee 
of  Elections.  That  committee  was  appointed  in  the  morning,  immedi- 
ately after  the  body  of  the  New-school  had  retired.  Sixty-eight  persons 
did  not  answer  to  their  names.  Of  these,  two,  Messrs.  White  and  Ma- 
gruder,  of  Charleston  Union  Presbytery,  afterwards  acted  with  our 
Assembly;  three.  Dr.  Green,  and  Messrs.  Snowden  and  King,  had  not 
yet  come  in,  and  were  recorded  absent:  the  number  of  sixty-eight  was 
thus  reduced  to  sixty-three.  Of  these,  thus  marked  absent,  Mr.  Scott 
rose,  and  being  permitted  to  give  his  reasons  for  not  answering,  I  believe 
withdrew  and  went  home.  That  left  but  sixty-two.  I  do  not  know,  of 
my  own  knowledge,  that  Mr.  Scott  went  home.  Of  the  one  hundred  and 
fifty-four,  who  answered  to  their  names,  Messrs.  Rankin  and  Crothers, 
from  the  far  West,  rose,  expressed  a  wish  to  be  considered  as  not  acting 
with  that  body,  and  withdrew.  At  the  close  of  the  session  of  our  Assem- 
bly, the  roll  was  called  to  mark  those  who  were  absent  without  leave; 
and  we  found  fifty-seven  so  absent,  all  of  them  being  of  the  number  of 
sixty-eight  recorded  absent  before.     There  were  four  commissioners,  who 


TESTIMONY  FOR  THE  RESPONDENTS.  211 

joined  our  Assembly,  arriving  after  the  first  day — one  on  the  ninth,  two 
on  the  eleventh,  and  one  on  the  twelfth  day  of  its  sessions,  making  the 
whole  number  of  those  who  acted  with  that  Assembly,  one  hundred  and 
sixty -one.     I  was  not  a  member  of  the  Assembly. 

Examined  by  Mr.  Preston.  Dr.  Witherspoon  was  present  at  the 
opening  of  the  Assembly.  He  was  the  Moderator  immediately  preceding 
Dr.  Elliott.  Dr.  Phillips  immediately  preceded  Dr.  Witherspoon.  I  sup- 
pose that  Dr.  Wm.  A.  McDowell  was  present,  though  he  was  not  a 
member.  He  had  been  Moderator  in  1833.  There  were  other  persons 
present  who  had  been  Moderators.  Dr.  Green  had  been,  and  the  wit- 
ness. Dr.  Beman  was  moderator  in  1831.  I  was  appointed  Stated  Clerk, 
in  the  year  1836,  after  Dr.  Ely  had  resigned  the  place.  Before  that,  I 
held  the  office  of  Permanent  Clerk,  or  scribe  of  the  Assembly,  from  1825, 
to  1836.  In  1837  I  held  both  offices,  and  was  alone  on  the  Committee  of 
Commissions. 

Cross-examined  by  Mr.  Randall.  When  the  roll  was  called  at  the 
close  of  the  Assembly,  fifty-seven  were  marked  absent — it  was  either 
-fifty-seven  or  sixty-seven.  I  am  perhaps  mistaken  in  the  number:  I  may 
possibly  have  made  a  mistake  in  counting  them. 

Mr.  Randall,  (handing  to  the  witness  the  JMinutes  (Old-school)  of 
1838,  page  47.)  Please  to  count  again  the  list  of  absentees,  and  tell  us 
how  many  there  are. 

Dr.  McDowell,  (after  counting)  I  find  the  number  was  sixty-five.  I 
must  have  made  a  mistake  in  counting  before. 

Mr.  Hubbell.     Had  Dr.  Hoge  been  Moderator  since  Dr.  Beman? 

Dr.  McDowell.     I  am  not  able  immediately  to  say. 

Prof.  Maclean — permission  having  been  giveji  to  him,  to  explain 
his  testimony.  I  have  been  informed,  that  my  testimony  might  be  mis- 
understood. I  was  asked  a  question  of  this  import:  whether  I  had  not 
said,  that  there  was  as  little  disorder  as  possible  under  such  circumstances. 
I  answered  in  the  affirmative,  but  did  not  mean  that  it  should  he  inferred, 
that  there  was  little  or  no  disorder.  I  meant  only,  that,  considering  the 
business  in  which  they  were  engaged,  they  made  as  little  disturbance  as 
could  be  expected.  Part  of  the  disorder  which  I  referred  to,  was  made 
by  Mr.  Cleaveland.  He  read  a  disorderly  paper,  and  did  not  obey  the 
Moderator,  when  he  called  him  to  order.  Then  a  number  of  persons 
rose,  and  went  toward  the  north  door.  They  stood  in  the  aisles,  on  the 
seats,  and  on  the  backs  of  the  pews.  I  was  unable  t!0  hear  the  questions 
put.  and  did  not  vote. 

Here  the  Respondents  closed. 


REBUTTING  TESTIMONY  FOR  THE  RELATORS. 

Dr.  Hill — re-called.  I  think  there  was  sufficient  time  given  for  the 
vote  on  Mr.  Cleaveland's  motion  for  the  appointment  of  Dr.  Beman  as 
Moderator,  and  I  think  the  question  was  reversed.  I  think  I  may  say  it 
ivas  reversed,  and  I  will  give  my  reasons  for  saying  so.  When  Mr. 
Cleaveland  was  about  t^  put  that  question,  in   my  estimation,  it  was  the 


212  PRESBYTERIAN  CHURCH  CASE. 

most  critical  and  interesting  moment  in  the  whole  proceeding,  because  it 
was  the  incipient  step  in  the  organization.  This  awakened  all  my  atten- 
tion.    I  may  state  here,  that  I  had  opposed  the  separate  organization. 

Mr.  Randall.     We  cannot  go  into  the  previous  meeting. 

Dr.  Hill.  I  had  determined,  beforehand,  to  take  no  part,  and  was  op- 
posed to  the  proceeding,  from  the  very  first.  I  voted  on  none  of  the 
questions,  and  identified  myself  with  neither  party.  I  occupied  neutral 
ground.  I  expected  that  a  riot  would  ensue.  My  feelings  were  wound 
up  to  a  very  high  pitch  of  excitement,  which  made  me  peculiarly  atten- 
tive at  this  crisis.  When  Mr.  Cleaveland  made  the  motion,  that  Dr.  Be- 
man  should  take  the  chair,  he  put  the  ffirmative — "  All  those  who  are  in 
favour  will  say,  aye."  At  this  moment  I  was  particularly  attentive  to  the 
Old-school  brethren,  casting  my  eyes  over  them,  to  see  what  they  would 
do.  There  arose  a  simultaneous  burst  of  ayes,  some  of  which  were  very 
indecorously  and  offensively  loud,  but  I  know  not  from  whom  they  came 
in  a  single  instance.  They  appeared  to  come  from  back  of  me,  but  I  did 
not  turn  round:  I  kept  my  face  toward  Dr.  Elliott.  Afterwards  there 
fell  in  a  few  scattering  ayes.  Mr.  Cleaveland,  as,  from  the  first,  he  had 
intended  to  do  all  in  the  shortest  time  possible,  reversed  the  question  very 
quickly:  I  dont  know,  that  all  the  scattering  ayes  had  ceased,  when  he 
reversed  it.  I  heard  a  few  scattering  noes,  only  from  the  direction  of  the 
Old-school — a  few  from  the  south-west,  and  some  from  immediately  in 
front  of  me.  I  was  astonished  at  this,  because  I  expected  a  thundering 
"  No!"  as  they  claimed  to  be  the  majority.  As  there  were  so  few  nega- 
tives, I  was  surprised  that  there  had  been  any.  I  thought  they  were,  at 
least,  not  well  trained.  For  these  reasons  my  attention  was  particularly 
called  to  the  proceedings  at  that  crisis.  I  think  1  cannot  be  mistaken  in 
my  recollection. 

I  know  Dr.  Beecher,  and  saw  him  that  day:  he  sat  in  the  pew  imme- 
diately before  me.  During  all  these  transactions  he  sat  perfectly  still,  and 
behaved  with  the  utmost  decorum.  He  is,  I  believe,  at  present  in  Cin- 
cinnati, not  here  on  the  ground.  He  is  very  much  of  a  gentleman  in  his 
deportment,  so  far  as  I  am  acquainted  with  him.  My  location  was  such, 
that  I  could  not  be  deceived  in  regard  to  him,  for  I  sat  right  back  of  him. 
Mr.  Cleaveland  and  Dr.  Patton  were  in  the  pew  in  front  of  me,  and  Dr. 
Beecher  sat  in  the  same  pew.  Mr.  Cleaveland  was  so  near  me,  that  I 
could  have  laid  my  hand  on  his  shoulder  as  he  rose.  I  was  as  favourably 
situated  for  hearing,  as  I  could  have  been;  hence  I  infer,  that  I  could  not 
be  niistaken  in  the  case. 

Cross-examined  hy  Mr.  Preston.  I  was  surprised  at  hearing  any  noes, 
and  disappointed.  I  had  expected  that  the  noes  would  be  of  another  cha- 
racter, and  was  agreeably  disappointed.  I  had  anticipated  these  events, 
and  had  feared,  that  a  great  riot  would  take  place.  1  really  cannot  say, 
from  personal  knowledge,  whether  the  Old-school  had  a  majority.  I 
know  they  claim  to  have  had  a  majority,  and  I  rather  suppose  it  was  the 
fact. 

Mr.  James  R.  Gemmell— -sworn.  I  attended  at  the  church  in  Ran- 
stead  Court,  on  the  day  of  the  organization  of  the  Assembly  of  1S3S.  I 
was  near  the  south-west  door,  leaning  on  a  pew,  just  under  the  gallery, 
not  far  from  the  Moderator.  I  remember  Mr.  Cleaveland's  rising,  and  his 
stating  that  he  wished  to  offer  a  resolution.     There  were  a  parcel  of  Old- 


REBUTTING  TESTIMONY  FOR  THE  RELATORS.      213 

school  brethren  at  my  right.  In  the  pew  on  which  I  was  leaning,  there 
was  a  great  noise,  and  scraping  and  coughing.  I  said  to  them,  that  that 
was  pretty  conduct  for  ministers;  that  they  might  as  well  hear  what  the 
gentleman  had  to  say.  One  of  them  answered,  yes,  that  they  might  as 
well.  I  don't  remember  Lhat  there  was  any  coughing;  but  there  was  a 
great  scraping  of  the  feet,  and  stamping,  in  the  pew  on  which  I  was  lean- 
ing. Mr.  Boardman  was  there,  and  Mr.  James  Latta.  I  was  called  here, 
to  give  evidence  very  unexpectedly. 

Cross-examined  by  Mr.  Huhhell.  I  turned  and  said,  this  was  pretty 
conduct  for  clergymen;  that  they  might  hear  what  the  gentleman  had  to 
read,  though  he  was  not  a  member.  I  am  not  a  member  of  any  church. 
I  attend  the  First  Presbyterian  Church — Mr.  Barnes's. 
.  By  Mr.  Preston.  I  knew  but  few  of  those  near  me.  Mr.  Boardman 
was  two  or  three  pews  off,  and  so  was  Mr.  William,  or  James,  Latta.  Mr. 
Finney,  of  New  Castle  Presbytery,  was  the  nearest  to  me  that  I  knew. 
My  face  was  towards  the  Moderator,  and  I  heard  scraping  among  these 
gentlemen.  Mr.  Finney,  I  say,  was  the  nearest:  the  others  were  not  so 
near.  I  addressed  those  nearest  to  me,  of  whom,  as  I  said,  Mr.  Finney 
was  one.  Mr.  Boardman  was  a  pew  or  two  off.  I  knew  those  near  me 
to  be  ministers.  My  observation  was  a  general  one:  it  was  not  addressed 
to  Mr.  Boardman,  or  to  Mr.  Latta,  or  to  any  one  in  particular.  I  don't 
recollect  whether  they  were  near  enough  to  hear  it.  There  was  a  tumult 
through  the  house.  I  was  in  the  midst  of  the  Old-school  party.  I  can't 
saw  that  I  knew  more  than  a  few  individuals  who  sat  near  me.  I  under- 
stood that  those  near  me  were  the  Old-school.  They  generally  acted  with 
the  Old-school  party.  I  saw  some  there,  who  had  acted  with  the  Old- 
school  in  1837,  as  Mr.  Latta.  I  think  all  near  me  were  Old-school:  as 
well  as  I  could  recognise  them  they  were;  but  I  am  not  positive  about 
those  whose  names  1  did  not  know.  There  did  not  seem  to  be  as  much 
noise  near  Mr.  Cleaveland,  as  there  was  about  me.  I  should  not  call  it  a 
riot:  there  was  scraping  and  coughing.  1  was  twenty  or  thirty  feet  from 
Mr.  Cleaveland,  and  the  noise,  generally,  was  in  that  part  where  I  sat. 

By  Mr.  IngersolL  I  don't  know  whether  the  aisles  of  the  church,  or 
the  pews,  were  carpeted.     I  rather  think  there  is  a  brick  pavement. 

By  Mr.  Preston.  I  went  to  the  church  just  before  Dr.  Elliott  closed 
his  sermon,  and  entered  from  the  grave-yard.  My  going  to  that  quarter 
of  the  house  was  purely  accidental;  indeed,  it  was  accidental  that  I  went 
at  all.  I  had  some  business  up  Market-street,  and  I  merely  stopped  in  as 
I  was  passing. 

Mr.  Randall.  The  Minutes  show  that  Mr.  Latta  was  a  member  of 
the  Assembly,  in  both  1837  and '38. 

Mr.  Elihu  D.  Tarr — affirmed.  My  profession  is  the  same  as  your 
own,  (Mr.  Randall's) — I  am  a  member  of  the  bar.  I  attended  the  organi- 
zation of  the  Assembly  of  1838.  My  location  was  three  or  four  pews 
behind  Mr.  Cleaveland.  I  heard  him  put  his  motion,  distinctly,  and 
heard  the  ayes.  I  heard  the  question  reversed,  as  I  know,  because  I  dis- 
tinctly heard  a  few  noes,  rather  to  the  north-west,  and  was  surprised  that 
the  noes  did  not  overwhelm  the  ayes.  It  had  been  intimated,  as  it  was 
afterwards  found,  that  the  Old-school  had  a  majority,  and  1  was  surprised 
that  they  did  not  vote  the  resolution  down.  It  was  from  the  south-west 
part  of  the  house  that^he  noes  came.     Did  I  say  before  the  north-west? 


214  PRESBYTERIAN  CHURCH  CASE. 

As  I  stood  looking  at  the  pulpit,  they  came  from  my  front,  and  my  right 
hand. 

Cross-examined  by  Mr.  Preston.  I  am  now  a  memher  of  Mr.  Rood's 
church.  Previously,  I  belonged  to  Mr.  Winchester's,  then  to  Mr,  Board- 
man's,  and  now  to  Mr.  Rood's.  I  heard  the  noes  distinctly.  I  have  at- 
tended the  legislature  of  this  State.  There  were  probably  from  three  to 
half-a-dozen  noes.  I  heard  the  question  put  in  regard  to  the  clerks,  and 
if  my  recollection  serves  me,  there  were  more  noes  on  that  question;  but 
about  this,  I  am  not  so  certain.  I  think  certainly  there  were  answers  in 
the  negative,  but  whether  more,  or  not,  I  can't  tell.  To  the  best  of  my 
recollection,  the  question  was  reversed,  on  each  of  the  motions  put.  I 
heard  the  motion  made  in  regard  to  Di*.  Fisher,  but  don't  recollect  whe- 
ther there  were  any  noes  on  that  vote.  I  can't  say  whether  there  were 
any  or  not.  I  was  surrounded  by  the  New-school  party,  and  was  very 
near  Mr.  Cleaveland.  Mr.  Rood,  my  impression  is,  belongs  to  the 
Third  Presbytery  of  Philadelphia,  but  I  cannot  say  certainly.  When  I 
removed  to  the  Northern  Liberties,  I  went  to  his  church,  without  asking 
whether  he  was  New,  or  Old-school.  I  am  decidedly  in  favour  of  the 
conduct  and  transactions  of  the  New-school  part}^,  and  opposed  to  those 
of  the  Old-school;  but  it  is  due  to  myself,  and  to  the  jury,  to  say,  that  I 
did  not  make  up  my  mind  on  this  subject,  until  after  the  proceedings  of 
1838. 

Mr.  James  TV.  Paul — sworn.  I  am  a  member  of  the  bar.  I  belong 
to  Mr.  Barnes'  church — the  First  Presbyterian  Church.  I  attended  the 
church  in  Ranstead  Court,  at  the  organization  of  the  Assembly  of  1838, 
and  stood  in  the  gallery,  in  front  of  the  organ.  I  heard,  distinctly,  Mr. 
Cleaveland's  motion,  the  vote  on  it  in  the  atlirmative,  and  my  impression 
is,  tliat  also  in  the  negative.  I  think  I  heard  some  noes  distinctly,  a  short 
time  after  the  ayes.  I  can't  be  certain,  but  this  is  my  impression,  and  I 
will  give  a  reason  why  I  think  my  impression  correct.  Knowing  that 
Dr.  Beman  was  <a  very  prominent  man  on  the  New-school  side,  I  thought 
it  very  strange,  that  such  a  motion  should  pass  without  opposition.  The 
noes  immediately  succeeded  the  ayes,  but  there  was  time  enough  for  the 
question  to  have  been  reversed,  if  it  was  done  rapidly. 

Mr.  Randall.  You  say,  that  if  the  reverse  of  the  question  was 
promptly  put,  there  was  time.'' 

Mr.  Ingersoll  objected  to  this  as  a  leading  question. 

Mr.  Randall.  If  the  reverse  was  promptly  put,  was  there  time  for  it? 

Mr.  Paul.  My  impression  is,  that  there  was — that  there  was  ample 
time.  I  never  expected  to  be  called  upon  to  testify,  and  therefore  did  not 
charge  my  memory  with  the  fact. 

No  cross-examination. 

Judge  Henry  Brown — siuorn,  iviih  the  uplifted  hand.  I  attended 
at  the  organization  of  the  Assembly  of  1838.  I  heard  Mr.  Cleaveland 
put  his  motion,  very  distinctly,  and  heard  it  reversed,  with  absolute  dis- 
tinctness. I  sat  in  a  pew  on  the  west  side  of  the  east  aisle,  one  pew  east, 
and  two  or  three  north  of  where  he  sat.  I  had  a  good  view  of  him,  and 
heard  the  question  distinctly  put.  There  was  a  very  loud  *'  Aye!"  Then 
the  question  was  reversed — I  should  say,  with  despatch,  but  there  was 
time  enough  to  hear  it  distinctly,  and  I  heard  distinctly  several  noes  on 
the  west  side  of  the  aisle,  two  or  three  to  the  south  of  me,  and  one  very 


REBUTTING  TESTIMONY  FOR  THE  RELATROS.  215 

near  me.  I,  am  confident  that  the  question  was  reversed,  and  that  there 
were  several  noes.  I  was  a  member  of  the  Assemblies  of  both  1837  and 
1838,  from  Lorain  Presbytery,  in  the  Western  Reserve.  There  was  a 
man  near  me,  who  -voted  aye  very  loudly.  He  sat  in  the  pew  with  me, 
and  afterwards  told  me  his  name.  His  aye  was  twice  as  loud  as  any  other 
in  the  house.  His  name  was  Foster.  I  twice  took  hold  of  him  by  the 
arm,  and  said  he  must  not  hollow  so  loud.  Towards  the  close  of  the  ayes, 
he  got  up  on  the  seat,  and,  I  thmk,  sat  down  on  the  top  of  the  forepart  of 
the  pew.  I  was  standing  on  the  floor.  I  was  an  elder  in  the  Assembly. 
Mr.  Foster,  I  understood,  was  an  elder  from  the  Presbytery  of  Montrose. 

Cross-examined  by  Mr.  Preston.  I  was  a  regular  ordained  elder.  I 
said '"Aye!"  I  think,  every  time.  My  commission  had  been  rejected 
by  the  Committee  of  Commissions.  I  can't  tell  whether  all  of  those, 
whose  commissions  had  been  rejected,  voted.  I  know  some  of  them  were 
present:  I  can't  say  I  saw  them  vote,  but  I  have  no  doubt  that  they  did. 
Yes,  I  ca7i  testify  to  one  man's  voting,  and  I  suppose  the  others  voted. 
I  could  not  have  been  expected  to  see  them  all  in  such  a  promiscuous 
assembly.  I  have  heard  stated  a  doubt  in  regard  to  the  reversal  of  the 
questions,  which  I  do  not  feel.  I  heard  the  question  reversed,  distinctly, 
on  the  motion  in  regard  to  Dr.  Beman;  distinctly,  on  the  choice  of  clerks; 
and  I  believe  that  it  was  reversed,  on  the  appointment  of  Dr.  Fisher,  in  a 
plain,  distinct  voice,  louder  than  usual.  I  have  never  doubted,  and  do  not 
now  feel  any  doubt,  as  to  this  point.  I  cannot  say,  that  every  question 
was  reversed,  but  I  have  no  doubt  in  regard  to  the  questions  on  Dr. 
Beman,  Dr.  Fisher,  and  the  clerks.  I  was  one  range  of  pews  east,  and 
two  or  three  pews  north  of  Mr.  Cleaveland.  He  was  at  the  east  end  of 
his  pew,  and  I  in  the  middle,  or  at  the  west  end  of  mine.  We  were 
probably  ten,  or  it  might  be  a  dozen  feet  apart.  There  is  one  suit  in  my 
name,  among  those  read  from  the  docket.  Perhaps  there  are  five^I  was 
not  very  particular  about  that  matter.  I  left  it  to  my  counsel,  and  sup- 
pose he  managed  it  correctly. 

Mr.  Thomas  Elmes — sworn.  I  belong  to  the  First  Congregational 
Church  of  Philadelphia — Mr.  Todd's.  I  was  not  a  commissioner  to  the 
Assembly  of  1838,  but  attended  at  its  organization.  I  went  in  at  the 
west  door  of  the  house,  from  the  burying-ground,  and  stood  leaning  upon 
the  rail  of  the  pew  opposite  to  the  door.  I  heard  Mr.  Cleaveland's  mo- 
tion very  distinctly  put — the  motion  that  Dr.  Beman  should  take  the 
chair.  I  heard  the  affirmative  very  distinctly,  and  several  negatives — say 
two  or  three — at  a  very  short  interval.  I  stood  pretty  near  the  Modera- 
tor. Dr.  Miller  was  between  Dr.  Elliott  and  me.  Dr.  Elliott  hammered 
and  called  to  order,  and  Dr.  Miller  tried  to  hush  the  noise.  He, put  his 
hand  up  and  wished  to  have  the  tumult  stopped,  and  used  some  expres- 
sion like,  <'  Let  them  go  through."  Dr.  Miller,  I  think,  stood  up  at  this 
moment:  he  had  before  been  sitting.  This  was  about  the  time  Mr. 
Cleaveland  was  endeavouring  to  read  his  paper.  The  tumult  was  the 
calling  to  order,  very  loudly,  in  the  neighbourhood  of  the  Moderator. 
All  the  noise,  pretty  much,  that  I  heard,  was  in  that  part  of  the  house.  I 
know  the  Rev.  George  Duffield:  he  is  now  in  Detroit,  as  I  understand. 
I  have  never  known  him  to  use  a  cane.  I  have  known  him  a  good 
many  yearS;  but  have  been  intimate  with  him  only  about  three.  When 
in  Philadelphia,  he  siaid  in  my  house  for  some  time,  and  I  never  saw  him 


216  PRESBYTERIAN  CHURCH  CASE. 

use  a  cane.     His  deportment  was   always  very  gentlemanly;  I  never 
heard  him  use  coarse  language.. 

Cross-examined  by  Mr.  Preston.  I  did  not  see  Mr.  Duffield  present 
at  the  organization  of  the  Assembly  of  1S38.  He  did  not  walk  there,  or 
come  away,  with  me.  The  reason  why  I  could  not  hear  all,  distinctly, 
was,  that  there  were  calls  to  order.  The  Moderator  called  to  order  very 
loudly,  and  thumped  with  his  hammer.  This  is  what  I  meant  when  I 
spoke  of  tumult.  There  was  a  good  deal  of  stir  and  bustle.  I  saw  no 
other  noise,  or  movement,  until  Mr.  Cleaveland  had  made  his  motion. 
When  that  motion  had  been  put,  Dr.  Beman  rose  and  stepped  into  the 
aisle,  and,  at  the  same  time,  others  rose  and  went  into  it.  The  vote  was 
nearly  unanimous.  There  were  two  or  three  noes.  I  did  not  hear  the 
negative  of  the  question  put  distinctly,  but  some  said,  "  No!"  I  did  not 
hear  any  ayes  mixed  with  the  noes.  There  was  a  pretty  loud  burst  of 
ayes,  then  a  few  scattering  ones,  a  short  pause,  and  afterwards  a  few.  noes. 
I  heard  Dr.  Mason  nominated  as  clerk,  but  I  do  not  know  by  whom.  I 
do  not  recollect  hearing  the  motion  put.  I  do  not  know  positively,  but  I 
think  it  was  put  by  Mr.  Cleaveland.  I  did  not  hear  it  reversed,  and  I 
don't  think  I  heard  any  noes  on  that  question.  Dr.  Miller  was  between 
me  and  the  Moderator,  sitting  somewhere  near  the  Moderator's  chair. 
Mr.  Cleaveland  was  fifteen  or  twenty  feet  from  me.  I  would  not  like  to 
say,  that  I  distinctly  saw  Mr.  Cleaveland  when  he  made  his  motion.  I 
had  not  interest  enough  in  the  proceedings  to  charge  my  memory.  I 
can't  say  whether  Mr.  Cleaveland  put  the  question  in  regard  to  the  clerks: 
it  might  have  been  Dr.  Beman.  I  belonged,  at  that  time,  to  the  Congre- 
gational Church.  I  was  once  a  Presbyterian  elder,  and  was  a  delegate  to 
the  Assembly  that  met  at  Pittsburg.  I  can  tell  how  I  voted  there.  I 
sympathize  with  those  who  do  right.  I  dont  know  what  is  understood 
by  New-school  or  Old-school.  I  don't  belong  to  either.  Other  people 
must  judge  which  I  belonged  to.  I  profess  to  be  a  Calvinist.  I  was  an 
elder  in  the  Fifth  Presbyterian  Church.  Mr.  Duffield  was  pastor  of  it 
a  short  time.  During  the  time  I  was  in  that  church,  I  was  a  Presbyte- 
rian: I  have  since  become  a  Congregationalist,  in  order  to  get  out  of  the 
quarrels  of  the  other  Church.  I  don't  recollect,  that  I  ever  stated,  that 
this  was  a  contest  between  Presbyterians  and  Congregationalists,  and  that 
the  Presbyterians  were  struggling  for  their  existence. 

Mr.  Preston.     Is  this  your  opinion — that  it  is  such  a  struggle? 

Mr.  Meredith  objected  to  the  question, 

Mr.  Elnies.     I  never  did  conceive — 

The  objection  withdrawn, 

Mr.  Elnies.  I  never  did  conceive  it  to  be  so,  I  have  never  thought 
or  stated,  that  that  was  the  real  struggle.  I  joined  a  Congregational 
church  in  Maine,  in  1812,  I  was  ordained  an  elder  in  1828.  I  became 
a  member  of  the  Presbyterian  Church  in  1815.  Several  years  I  belong- 
ed to  the  Sixth  Presbyterian  Church,  Two  years  ago,  I  again  entered 
into  connexion  with  the  Congregational  Church,  I  had  been  a  Congre- 
gationalist, first,  in  Augusta,  Maine,  I  joined  Mr,  Todd's  church,  in  the 
beginning  of  the  spring  of  1837,  after  the  church  was  completed.  It  is  in 
Tenth  street  below  Spruce. 

Rev.  James  M.  Davis — sivorn,  luith  the  uplifted  hand.  I  attended 
at  the  organization  of  the  Assembly  of  1838,     I  remember  Mr.  Cleave- 


REBUTTING  TESTIMONY  FOR  THE  RELATORS.  217 

land's  motion.  I  was  standing  halfway  down  the  middle  aisle,  when  he 
rose,  and  heard  his  preparatory  remarks.  I  heard  Mr.  Cleaveland's  mo- 
tion distinctly — the  affirmative  very  distinctly,  and  the  reversal  with 
equal  distinctness.  >  I  heard  from  eight  to  ten  negative  voices,  and  my 
impression  was,  that  they  came  from  the  quarter  where  the  Old-school 
brethren  sat.  I  was  expecting  them  from  that  quarter,  and  think  I  can- 
not be  mistaken.  There  was  considerable  confusion  when  Mr.  Cleave- 
land  commenced.  There  were  calls  to  order  by  the  Moderator,  and  by 
persons  at  his  left ;  but  they  soon  desisted,  and,  at  the  close  of  his  remarks, 
the  house  was  as  still  as  it  possibly  could  be.  His  last  sentence  has  been 
repeated  by  every  witness.  When  he  made  his  motion,  the  house  was  very 
still:  all  the  noise  had  subsided  by  that  time  I  am  a  clergyman,  and  preach 
■in  thc' First  Presbyterian  Church  of  Fairmount.  Previously,  I  have  preach- 
ed in  the  First  Presbyterian  Church  at  Manayunk.  These  churches  be- 
long to  the  Third  Presbytery.    I  entirely  sympathize  with  the  New-school. 

Cross-examined  by  il/r.  Preston.  I  heard  the  reversal  of  the  ques- 
tion, as  distinctly  as  the  affirmative,  but  it  was  more  rapid.  I  think  it 
was  distinct  enough  for  every  one  in  the  house  to  have  heard  it,  if  dispos- 
ed to  hear,  as  I  was.  An  individual  might  have  made  so  much  noise, 
that  he  could  not  hear.  It  was  put  when  the  house  was  the  quietest.  I 
was  about  the  middle  of  the  aisle.  Br.  Benian  came  out  of  the  pew  di- 
rectly by  my  side:  I  could  have  laid  my  hand  upon  his  shoulder.  He 
put  the  question,  on  the  appointment  of  clerks,  while  standing  directly 
by  me.  I  was  not  a  iTiember  of  the  Assembly,  and  did  not  vote.  I  am 
connected  with  Mr.  McClelland,  one  of  the  relators  in  this  case :  he  is 
my  father-in-law.  I  stated  this  to  Mr.  Randall.  He  told  me  it  was  no 
objection.  I  was  licensed  by  a  Congregational  Association,  but  ordained 
by  the  Presbytery.  I  was  born  in  New  England,  and  received  my 
Theological  education  at  New  Haven.  I  continued  in  my  position  near 
Dr.  Beman,  until  the  close  of  the  proceedings,  and  went  away  from  the 
church  among  those  who  acted  with  him.  I  recollect  some  noise  on  the 
announcement  of  one  or  two  of  the  motions,  and  a  good  deal,  when  Dr. 
Fisher  announced  the  adjournment.  Then  there  was  considerable  clap- 
ping and  some  hissing.  I  mentioned  to  Mr.  Gilbert  my  relationship  to 
Mr.  McClelland,  and  he  said  that  he  would  tell  Mr.  Randall. 

Rev.  Daniel  W.  Lathrop — sworn.  I  attended  the  Assembly  of 
1838,  as  a  commissioner  from  Lorain  Presbytery,  in  the  Synod  of  the 
Western  Reserve,  one  of  the  exscinded  Synods.  I  came  as  a  minister. 
I  heard  Mr.  Cleaveland  make  his  remarks,  and  heard  the  substance  of  his 
motion,  with  perfect  distinctness.  At  the  conclusion  of  his  introductory 
remarks,  he  moved,  that  Dr.  Beman  should  be  Moderator,  my  impression 
is ;  or,  that  he  should  take  the  chair.  He  stated  the  question  in  an  audi- 
ble voice,  louder  than  usual.  He  put  both  the  affirmative,  and  the 
negative,  and  there  were  some  negative  votes;  one  of  them  my  own. 
I  don't  recollect  any  others  in  my  neighbourhood.  I  was  on  the 
east  aisle.  Some  two  or  three  of  the  noes  were  in  front  of  me, 
and  the  rest  were  in  the  south-west  part  of  the  house.  My  recollec- 
tion of  the  noise  that  I  heard  is,  that  it  consisted  principally  of  cries 
of  order,  from  the  south  and  south-west  parts  of  the  house,  with  some 
from  the  south-east.  They  came,  chiefly,  from  near  the  Moderator, 
and  from  west   of  hgn.     I   heard  no   noise,   or  confusion,  in  the  vici- 

28 


219  PRESBYTERIAN  CHURCH  CASE. 

nity  of  Mr.  Cleaveland.  With  the  exception  of  himself,  and  the  others 
who  proposed  questions,  all  were  silent,  until  he  called  for  the  ayes:  then 
there  was  a  distinct  and  loud  i-esponse.  There  was  no  other  noise  in 
that  vicinit}''  than  the  one  alluded  to.  There  was  one  aye  louder  than 
the  rest.  The  reason  why  I  know  there  was  a  reversal  of  the  question, 
is,  that  I  voted  in  the  negative.  I  recollect  the  reasons  I  had  for  so  doing. 
I  saw  the  gentleman,  from  whom  I  supposed  the  loud  aye  came:  he  was 
an  elder  from  the  Presbytery  of  Montrose.  Foster  was  his  name.  It 
was  not  Dr.  Beecher. 

Cross-examined  by  Mr.  Preston,  I  voted  in  the  negative,  on  the 
first  question.     I  did  not  also  vote  in  the  affirmative. 

Mr.  Preston.  You  have  spoken  of  your  reasons  for  voting  in  the  ne- 
gative: what  were  those  reasons? 

Mr.  Randall.  Is  that  a  proper  question — what  the  motives  of  the 
witness  were? 

Judge  Rogers.  The  fact  that  the  witness  did  vote  is  evidence,  but 
his  reasons  for  voting  in  a  particular  way  are  not. 

Mr.  Hubhell.  Your  Honour  will  please  to  note  an  exception  to  this 
decision. 

Mr.  Preston.  With  submission  to  your  Honour's  opinion,  I  would 
suggest  that  we  do  not  now  ask  for  general  reasons:  the  object  of  the 
question  is  to  discover  whether  there  was  not  a  preconcerted  plan  that 
some  of  the  New-school  should  vote  in  the  negative. 

The  counsel  for  the  relators  withdrew  their  objection. 

Mr.  Lathrop.  I  arrived  in  the  city,  at  ten  o'clock,  on  the  evening 
previous  to  the  opening  of  the  Assembly,  and  had  no  opportunity  for 
consultation  with  either  party,  or  any  school,  except  with  two  or  three 
persons,  whom  I  fell  in  with  on  my  way  to  the  committee-room  of  the 
clerks.  I  had  no  intimation  of  any  peculiarity  in  the  organization  of  the 
Assembly,  from  any  gentleman  in  the  city,  or  on  my  way.  I  went  to 
the  house,  at  the  usual  time,  and  found  a  seat  as  I  could.  My  attention 
was  very  much  absorbed,  during  the  religious  exercises,  by  what  seemed 
the  peculiar  character  of  those  services,  and  I  was  deeply  pondering,  and 
was  very  much  affected  by  them.  This  continued,  until  my  attention 
was  arrested  by  the  subsequent  proceedings.  When  Mr.  Cleaveland  rose, 
and  moved  the  appointment  of  a  Moderator,  this  did  not  strike  me  as  the 
course  I  should  like  to  pursue.  That  was  the  simple,  and  only,  reason 
for  voting  as  I  did — in  the  negative.  I  believe  I  voted  aye  on  all  the 
subsequent  questions,  excepting  the  first  nomination  of  clerks — as  to  this, 
I  am  not  positive.  My  commission  had  been  rejected  by  Dr.  McDowell. 
I  think,  that  on  my  way,  or  as  I  was  going  out  of  the  committee-room,  I 
gave  it  into  the  hands  of  a  gentleman,  who  had  been  similarly  treated — I 
think  it  was  Mr.  S(juier.  I  am  not  certain  that  I  had  not  the  commission 
at  the  time.  1  have  no  stronger  assurance,  in  regard  to  this  point,  than  in 
regard  to  the  other.  I  think  I  had  given  it  to  Mr.  Squier.  I  subsequently 
sat  with  the  body,  that  adjourned  to  the  church  on  Washington  Square.  I 
acted,  in  that  Assembly,  in  the  Committee  of  Overtures,  but  on  no  other 
standing  committee.  I  don't  recollect  whether  I  was  on  any  other  com- 
mittee. I  think  I  was  not  on  the  committee  to  revise  the  minutes.  I 
think  I  was  a  member  of  the  committee  to  form  a  Pastoral  Letter.  I 
have  no  recollection  of  being  on  a  committee  to  prepare  a  minute  of  the 


REBUTTING  TESTIMONY  FOR  THE  RELATORS.       219 

organization  of  the  Assembly.  My  impression  is,  that  there  was  such  a 
committee.  My  recollection  is  not  distinct  in  regard  to  this  point,  but  such 
is  my  impression.  I  can't  tell  how  often  I  have  sat  in  the  Asse.mbly ;  I  think 
about  eight  times.  One  session  I  sat  as  a  committee-man — the  session  of 
1820.  I  came  to  that  Assembly,  of  which  Dr.  John  McDowell  was  chosen 
Moderator,  from  the  Presbytery  of  Hartford,  Synod  of  Western  Reserve, 
then,  now,  and  ever,  a  good,  thorough  Old-school  Presbytery.  My  com- 
mission was  questioned,  and  discussed  a  long  while;  and  the  previous  Mo- 
derator, seeing  that  the  discussion  was  likely  to  occupy  considerable  time, 
asked  me,  if  1  would  not  wave  my  right  to  have  the  question  decided 
before  a  new  Moderator  had  been  chosen,  and  I  did  so.  Afterwards,  my 
seat  was  given  to  me.  I  was,  first,  a  member  of  a  Congregational  church 
•in  Norwich,  Connecticut,  where  I  was  born,  that  being  the  only  church 
in  the  parish.  I  was  licensed  and  ordained  by  the  Rev.  John  McDowell, 
and  his  associates,  in  a  Presbytery  of  New  Jersey.  Afterwards,  I  be- 
longed to  the  Synod  of  Pittsburg,  in  which  I  remained  until  detached 
from  it,  in  1S37.  I  have  sent  reports  of  the  progress  of  this  trial  to  the 
editor  of  the  New  York  Journal  of  Commerce,  and  have  seen  two  of  them 
published.  The  reports  in  that  paper  are  from  my  hand.  I  am  a  friend 
of  the  editor's. 

Mr.  Randall.  In  the  case  of  Duncan,  against  the  Ninth  Presbyterian 
Church,  Dr.  Green,  one  of  the  Respondents  in  this  case,  was  examined, 
and  I  propose,  now,  to  read  his  testimony.  It  has  been  intimated,  that  an 
objection  will  be  made.     I  offer  it  as  the  confessions  of  a  party. 

The  counsel  for  the  respondents  objected. 

Mr.  Randall.     I  withdraw  the  offer. 

The  next  evidence — Minutes  (Old-school)  of  1838 — the  minute  of  the 
organization  of  the  Assembly. 

"The  General  Assembly  of  the  Preshyt'^rian  Church,  in  the  United  Stales  of  Ame- 
rica, met  agreeably  to  appointment,  in  the  Seventli  Prf.ebytprian  Church,  in  the  city  of 
Philadelphia,  on  'I'hursday,  the  17lh  day  of  May.  A.  D.  1838,  at  11  o'clock,  A.  M. ;  and 
was  opened  with  a  sermon  by  ihp  Rev.  David  JEUiott,  D.  D.,  the  Moderator  of  the  last 
Assembly,  from  Isaiah  60.  1.  'Arise,  shine,  (or  thy  light  is  come,  and  the  glory  of  the 
Lord  is  risfn  upon  thee.' 

"  After  the  sermon,  the  Moderator  gave  notice  that  as  soon  as  the  benediction  was 
pronouDCfd,  he  would  take  the  chair,  and  proceed  to  the  organization  of  the  Assembly. 
The  benedi(  tinn  bemg  pronounced,  the  Moderator  took  the  chair,  and  having  opened  the 
meeting  wiih  p  ayer,  called  upon  the  Permanent  Clerk  to  report  the  roll. 

"The  Rev.  William  Patton,  a  member  of  the  Third  Presbytery  of  New  York,  rose 
and  asked  leave  to  offer  crtain  resoUiiions  which  he  held  in  his  hand. 

"  The  Moderator  declared  the  request  at  that  time  to  be  out  of  order,  as  the  first  busi- 
ness was  the  report  of  the  Clerks. 

"Dr.  Patton  appealed  from  the  decision.  The  moderator  declared  the  appeal,  for  the 
reason  already  stated,  to  be  at  that  time  out  of  order.  Dr.  Patton  slated  that  the  resolu- 
tions related  to  the  formation  of  the  roll,  and  began  to  read  the  same;  but  being  called 
to  Older,  took  his  seat. 

"The  Permanent  Clerk,  from  the  Standing  Committee  of  Commissionp,  reported  that 
the  following  persons,  present,  have  been  duly  appointed,  and  are  enrolled  as  Conimii- 
Bioners  to  the  General  Assembly,  and  laid  their  commissions  on  the  table,  viz." 

(Here  follows  the  roll.) 

"The  Committee  of  Commissions  further  reported  that  the  Rev.  Robert  G.  Thomp- 
son, of  the  Presbytery  of  Bedford  ;  Rev.  Adam  Millar,  of  the  Presbytery  of  Montrose; 
and  Mr.  James  Elliott,  a  ruling  elder  of  the  Presbytery  of  Richland,  have  Plated  to  the 
committee  that  they  were  appointed  by  their  respective  Presbyteries,  but  have  not  their 
commissions;  that  the  cqyimission  of  Mr.  John  W.  Cunningham,  a  ruling  elder  from 
the  Presbytery  of  New  Castle,  wants  the  signature  of  the  Moderator;  and  that  the 


220  PRESBYTERIAN  CHURCH  CASE. 

commission  of  Rev.  Ephraim  P.  Bradford,  of  the  Presbytery  of  Londonderry,  wants  the 
signature  of  the  Clerk. 

"They  further  reported  that  the  Rev.  David  R,  Preston,  and  Mr.  Thomas  Beard,  a 
ruling  elder,  appeared  before  the  committee  with  regular  commissions  from  tlie  Pres- 
bytery of  Greenbrier,  which  commissions  were  accou)panied  with  an  attested  extract 
from  the  minutes  of  the  Synod  of  Virginia,  certifying  that  said  Presbytery  was  regu- 
larly constituted  by  the  Synod  of  Virginia,  October  10th,  1837. 

"  The. documents  referred  to  in  the  foregoing  report  of  the  informal  cases,  were  kid 
on  the  table  by  the  Permanent  Clerk. 

"  After  the  report  of  the  Committee  of  Commissions  had  been  read,  the  Moderator 
stated  that  the  Commissioners  whose  commifsions  had  been  examined,  and  wliose  names 
had  been  enrolled,  were  to  be  considered  as  members  of  this  Assembly;  and  added  that 
if  there  were  any  Commissioners  present  from  the  Presbyteries  belonging  to  the  Pres- 
byterian Church  in  the  United  States  of  America,  whose  names  had  not  been  enrolled, 
then  was  the  time  for  presenting  their  commissions. 

"Dr.  Mason  rose,  as  he  said,  to  offer  a  resolution  to  'complete  the  roll,'  by  adding 
the  names  of  certain  commissioners,  who,  he  said,  had  offered  their  commissions  to  the 
clerks,  and  had  been  by  them  refused.  The  Moderator  inquired  if  they  were  from 
Presbyteries  belonging  to  the  Assembly,  at  the  close  of  the  session  of  last  year  I  Dr.  Ma- 
son replied  that  they  were  from  Presbyteries  belonging  to  the  Synods  of  Utica,  Geneva, 
Genesee,  and  the  Western  Reserve.  The  Moderator  then  stated  that  themotion  was 
out  of  order  at  this  time.  Dr.  Mason  appealed  from  the  decision  of  the  Moderator; 
which  appeal,  also,  the  Moderator  declared  to  be  out  of  order,  and  repeated  the  call  for 
commissions  from  Presbyteries  in  connexion  with  the  Assembly. 

"The  Rev.  Miles  P.  Squier,  a  member  of  the  Presbytery  of  Geneva,  then  rose  and 
stated  that  he  had  a  commission  from  the  Presbytery  of  Geneva,  which  he  had  presented 
to  the  clerks,  who  refused  to  receive  it,  and  that  he  now  offered  it  to  the  Assembly,  and 
claimed  his  right  to  his  seat. '  The  Moderator  inquired  if  the  Presbytery  of  Geneva  was 
within  the  bounds  of  the  Synod  of  Geneva.  Mr.  Squier  replied  that  it  was.  The  Mo- 
derator said:  "Then  we  do  not  know  you,  sir,"  and  declared  the  application  out  of  order. 
Mr.  Cleaveland  then  rose  and  began  to  read  a  paper,  the  purport  of  which  was  not  heard, 
when  the  Moderator  called  him  to  order.  Mr.  Cleaveland,  however,  notwithstanding 
the  call  to  order  was  repeated  by  the  Moderator,  persisted  in  the  reading.  During 
which,  the  Rev.  Joshua  Moore,  fr  )m  the  Presbytery  of  Huntingdon,  presented  a  com- 
mission, which  being  examined  by  the  Committee  of  Commissions,  Mr.  Moore  was  en- 
rolled, and  took  his  seat, 

"It  was  then  moved  to  appoint  a  Committee  of  Elections  to  which  the  informal  com- 
missions might  be  referred.  But  the  reading  by  Mr.  Cleaveland  still  continuing,  the 
Moderator,  having  in  vain  again  called  to  order,  "took  his  seat,  and  the  residue  of  the 
Assembly  remaining  silent,  the  business  was  suspended  during  the  short  but  painful 
scene  of  confusion  and  disorder  which  ensued.  After  which,  and  the  actors  therein 
having  left  the  house,  the  Assembly  resumed  its  business. 
"  On  motion, 

"The  cases  of  Messrs.  Thompson,  Millar,  Elliott,  Cunningham,  Bradford,  Preston, 
and  Beard,  and  the  documents  concerning  them,  were  referred  to  Messrs.  Culbertson, 
J.  L.  R.  Davies,  and  Hugh  Campbell,  as  a  Committee  of  Elections. 

"  The  Rev.  William  S.  Plumer  was  unanimously  elected  Moderator ;  and  the  Rev. 
Elias  W.  Crane  was  unanimously  elected  temporary  clerk. 

"The  Committee  of  Elections  reported  that  the  following  persons,  whose  cases  had 
been  submitted  to  them,  were  regularly  appointed  commissioners  to  this  Assembly,  and 
recommended  that  they  be  severally  admitted  to  seats,  viz:  Rev.  Robert  G.  Thompson, 
of  the  Presbytery  of  Bedford;' Mr.  James  Elliott,  ruling  elder  of  the  Presbytery  of  Rich- 
land; Mr.  John  W.  Cunningham,  ruling  elder  of  the  Presbytery  of  New  Castle;  the 
Rev.  Ephraim  P.  Bradford,  and  Rev.  David  R.  Preston,  and  Mr.  Thomas  Beard,  ruling 
elder,  from  the  Presbytery  of  Greenbrier;  they  further  reported  that  the  Rev.  Adam 
Millar,  of  the  Presbytery  of  Montrose,  did  not  appear  before  the  committee. 

"The  case  of  the  Commissioners  from  the  Presbytery  of  Greenbrier  was  referred  back 
to  the  Committee  of  Elections,  and  that  part  of  their  report  relative  to  Messrs.  Thomp- 
son, Elliott,  Cunningham,  and  Bradford,  was  adopted,  and  it  was  ordered  that  their  names 
be  inserted  in  the  roll.     These  Commissioners  took  their  seats. 
"And  then  the  Assembly  adjourned  till  this  afternoon  at  5  o'clock. 
"  Concluded  with  prayer." 


TESTIMONY  FOR  THE  RESPONDENiS.  221 

Mr.  Bandall.  We  offer,  also,  the  whole  of  the  statistical  table  append- 
ed to  the  same  Minutes,  but  without  reading,  as  it  occupies  forty  or  fifty- 
pages. 

The  last  evidence. offered,  was  certain  extracts  from  the  unpublished 
manuscript  minutes  of  some  of  the  earlier  Assemblies,  going  to  prove  the 
same  point  on  which  similar  evidence  had  before  been  extracted  from  the 
printed  minutes — that  it  had  been  customary,  in  the  Assembly,  to  deter- 
mine contested  rights  of  membership,  previously  to  the  choice  of  a  Mode- 
rator.    Merely  the  references  are  given, 

Fol  I.p.2G.—  P^ol  JI.pp.  104,  30S.— Vol.  HI.  p.  378.  — Fb/.  IV. 
pp.  19S,  253. 

Here  the  testimony  fortlie  Relators  closed. 


TESTIMONY  FOR  THE  RESPONDENTS. 

Mr.  Hubhell.  We  offer  the  whole  of  the  New-school  Minutes  as  evi- 
dence against  the  Relators. 

Mr.  Meredith.  We  desire  to  know  the  particular  parts  which  are  re- 
lied on,  and  for  what  purpose. 

Mr.  Hnhhell.     Every  part. 

Mr.  Meredith.     We  object  to  the  offer  of  the  whole. 

Mr.  Hubhell.  These  minutes  contain  repeated  contradictions  of  the 
testimony  of  the  witnesses  on  the  other  side. 

Mr.  Meredith.     Will  the  counsel  be  good  enough  to  point  them  out? 

Mr.  HubbelL  To  do  that  I  must  make  a  speech  upon  the  subject. 
You  have  the  advantage  of  the  conclusion. 

Mr.  Meredith.  We  make  no  objection  to  these  minutes,  if  offered  to 
contradict  our  witnesses,  in  matters  brought  out  on  the  examination  in 
chief;  but  as  contradictory  of  their  evidence  on  cross-examination,  as  to 
collateral  matters,  they  are  inadmissable. 

Mr.  liubbell.  I  offer  in  evidence,  according  to  our  agreement,  the 
whole  of  the  Minutes  of  the  body  that  met,  in  1838,  in  the  First  Presby- 
terian Church:  We  see  contradictions  of  the  testimony  offered  on  the 
part  of  the  Relators,  in  every  line.  A  part  of  these  minutes  has  already 
been  given  on  the  other  side — that  relating  to  the  election  of  trustees;  and 
we  have  given  a  part  of  the  Pastoral  Letter.  Now  we  desire  to  offer  the 
rest. 

Mr.  Meredith.     The  thing  would  be  simplified  if  my  learned  friend 
would  give  us  an  example  of  the  contradictions  which  he  alludes  to. 
-  Judge  Rogers.     Hereafter,  I  shall  admit  what  is  evidence,  and  what 
is  not  1  shall  reject. 

Mr.  Meredith.  We  are  very  glad  of  our  minutes'  being  read,  but  not 
to  contradict  our  witnesses,  as  to  collateral  facts  brought  out  on  cross-ex- 
amination. 

Judge  Rogers.    You  both  seem  to  be  of  the  same  opinion. 

Mr.  Meredith.  I  now  understand  it  then  for  the  first  time.  I  under- 
stand, that  the  testimony  is  offered  to  contradict  our  evidence,  and  not 
statements  as  to  collateral  facts.  But  I  have  not  yet  heard  such  a  declara- 
tion from  the  opposite  party. 


222  PRESBYTERIAN  CHURCH  CASE. 

Mr,  Huhbell.  There  may  be  some  difference  of  opinion  as  to  what 
facts  are  collateral. 

Mr.  Meredith.     That  your  Honour  must  decide. 

Mr.  Huhbell.     In  whatever  your  Honour  decides  we  shall  acquiesce. 

Judge  Rogers.  Gentlemen,  I  can't  see  how  you  differ.  I  hate  these 
sweepings  of  the  case. 

Mr.  Huhbell.  As  the  opposite  counsel  have  exacted  an  explanation 
from  us,  we  ask  the  same  from  them. 

Mr.  Meredith.  We  stated  at  the  time  the  offer  was  made,  what  parts 
we  gave  in  evidence — the  minute  of  the  organization,  and  the  statistical 
table  at  the  end.      These  are  all  to  which  we  shall  refer. 

(The  Pastoral  Letter  from  these  Minutes  has  been  already  given.  We 
here  insert  the  minute  of  the  organization.) 

Minutes  {New-school)  1838,  p,  635  el  seq. 

"The  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America 
met,  aorreeably  to  appointment,  in  the  Seventh  Presbyterian  Church,  in  the  city  of 
Philadelpliia,  on  the  third  Thursday  of  May,  1838,  at  11  o'clock,  A.  M.,  and  was  opened 
with  a  sermon  by  the  Rev.  David  Elliott,  D.  D.,  Moderator  of  tlie  last  Assembly,  from 
Isa.  Ix.  1 :  '  Arise,  shine,  for  thy  light  is  come,  and  the  glory  of  the  Lord  is  risen  upon 
thee.' 

"After  public  worship,  the  Moderator  of  the  last  Assembly  announced  from  the 
desk,  that  immediately  after  the  benediction,  the  Moderator  would  take  tlie  chair  on 
the  floor  of  the  church,  and  the  Assembly  would  then  be  constituted. 

"  After  the  benediction,  the  Moderator  of  the  last  Assembly  took  the  chair  and  open, 
ed  the  meeting  with  prayer. 

"  The  Rev.  William  Patton,  D.  D.,  from  the  Third  Presbytery  of  New  York,  then 
rose,  and  asked  leave  to  offer  the  following  preamble  and  resolutions." 

(Then  follow  the  resolutions  before  inserted — Ante  p.  51.) 

"The  Moderator  declared  him  to  be  out  of  order,  and  refused  to  allow  them  to  be 
read.  Dr.  Patton  then  staled  that  he  was  very  desirous  to  have  them  put  and  passed 
upon  without  remark  or  debate.  The  Moderator  again  declared  them  out  of  order,  as 
the  next  business  was  the  reportof  the  clerks  upon  the  roll.  Dr.  Patton  then  appealed 
from  the  decision  of  the  chair.  The  appeal  was  seconded,  and  the  Moderator  declared 
the  ap  leal  to  be  out  of  order,  and  refused  to  put  it,  and  directed  the  clerk  to  make  his 
report  upon  the  roll.  Dr.  Paiton  then  declared  to  the  Moderator  that  the  papi-'r  he 
wished  read  had  relation  to  forming  the  roll.  The  Moderator  then  stated  that  he  was 
out  of  order,  as  the  clerk  was  on  the  floor;  whereupon  the  Moderator  was  reminded  by 
Dr.  Paiton  that  he  had  the  floor  before  the  clerk.  The  Moderator  directed  the  clerk 
to  proceed  with  the  report  on  the  roll,  and  Dr.  Patton  thereupon  took  his  seat. 

"  The  report  of  the  clerks  of  the  last  Assembly  upon  the  roll  was  then  read  by  the 
Rev.  John  M,  Krebs,  one  of  the  clerks  of  the  last  Assembly,  and  was  as  fullows:" 

(Then  comes  the  roll.) 

"  The  reading  of  the  report  being  finished,  the  Moderator  announced  that  if  there 
were  commissioners  from  any  Presbyteries  of  the  Presbyterian  Church  who  had  not 
been  enrolled,  then  was  the  proper  time  to  make  application  to  have  their  names  put 
upon  the  roll. 

"Thereupon  the  Rev.  Erskine  Mason,  D.  D.,  from  the  Third  Presbytery  of  New 
York,  rose  and  offtired  the  following  resolution: 

"  '  Resolved,  'J'hat  the  roll  be  now  completed  by  adding  the  names  of  all  the  commis- 
sioners now  present  from  the  several  Presbyteries  within  the  bounds  of  the  Synods  of 
Uiica,  Geneva,  Genesee,  and  the  Western  Reserve.' 

"  And  staled  that  the  commissioners  from  the  Presbyteries  therein  named  had  offered 
their  commissions  to  the  clerks,  who  had  refused  to  receive  them.  The  Moderator 
asked  Dr.  Mason  if  they  were  from  Presbyteries  connected  with  the  Assembly  of  1837 
at  the  close  of  its  session.  Dr.  Mason  replied  that  they  were  from  Presbyteries  within 
the  bounds  of  the  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Reserve.    The 


TESTIMONY  FOR  THE  RESPONDENTS.  223 

Moderator  then  stated  that  they  could  not  be  received.     Dr.  Mason  then  formally  ten- 
dered the  commissions  of  commissioners  from — " 

(Next  come  the  names  of  the  Presbyteries  within  the  four  disowned 
Synods,  with  the  commissioners  from  each.) 

"  And  demanded  that  tliey  be  put  upon  the  roll.  The  resolution  was  second'ed.  The 
Moderator  declared  it  out  of  order.  Dr.  Mason  then  said,  that  with  the  gfreatest  respect 
for  the  chair,  he  must  appeal  from  that  decision.  The  appeal  was  seconded.  The  Mo- 
derator declared  the  appeal  out  of  order,  and  refused  to  put  it. 

"  The  Rev.  Miles  P.  Squier,  from  the  Presbytery  of  Geneva,  then  rose  and  addressed 
the  chair,  statinj^  that  he  had  a  commission  from  tho  Presbytery  of  Geneva,  which  he 
had  presented  to  the  clerks,  who  refused  to  receive  it,  and  he  demandpd  his  right  to 
his  seat  and  required  his  name  to  be  enrolled.  The  Moderator  asked  him  if  the  Pres- 
bytery of  Geneva  was  within  the  Synod  of  Geneva.  Mr.  Squier  replied  that  it  was 
within  the  bounds  of  the  Synod  of  Geneva.  The  Moderator  then  said,  '  We  do  not 
know  yon,' and  refused  the  demand,  declaring  it  out  oF  order. 

"These  repeated  refusals  of  the  Moderator  and  clerks  of  the  General  Assembly  of 
1837  to  perform  the  duties  of  their  respective  offices,  in  the  nrganizaiion  of  the  Gene- 
ral Assembly  of  1838,  till  its  own  officers  should  be  appointed,  thus  impeding  the  con- 
stitutional progress  of  business,  the  Rev.  John  P.  Cleaveland,  of  tlie  Presbytery  of  De- 
troit, rose  and  stated  in  substance  as  follows: — that  as  the  Commissioners  to  the  Gene- 
ral Assembly  for  18.38,  from  a  large  number  of  Presbyteries,  had  been  refused  their 
seats;  and  as  we  had  been  advised  by  counsel  learned  in  the  law,  that  a  constitutional 
organization  of  the  Assembly  must  be  secured  at  this  time  and  in  this  place,  he  trusted 
it  would  not  be  considered  as  an  act  of  discourtesy,  but  merely  as  a  matter  of  necessity,  if 
we  now  proceed  to  organize  the  General  Assembly  for  1838,  in  the  fewest  words,  the 
shortest  time,  and  with  the  least  interruption  practicable.  He  therefore  moved  that 
Dr.  Beman,  from  the  Presbytery  of  Troy,  be  Moderator  to  preside  till  a  new  Modera- 
tor be  chosen.  The  motion  was  seconded  by  the  Rev.  Baxter  Dickinson  from  the  Pres- 
bytery of  Cincinnati,  and  no  other  person  being  nominated,  the  Rev.  Dr.  Beman  was 
unanimously  appointed  such  Moderator. 

"  It  was  then  moved  and  seconded  that  the  Rev.  Erskine  Mason,  D.D.  from  the  3d 
Presbytery  of  New  York,  and  the  Rev.  E.  W.  Gilbert,  from  the  Presbytery  of  Wil- 
migton,  be  clerks  pro  tempore;  and  no  other  persons  being  put  in  nomination,  they 
were  unanimously  appointed. 
"The  followmg  is  the  roll  of  the  General  Assembly  as  completed  by  the  clerks  :" 
(Then  comes  the  whole  roll.) 

"The  Rev.  Samuel  Fisher,  D.D.  of  the  Presbytery  of  Newark,  was  nominated  as 
Moderator  of  the  General  Assembly,  and  no  other  person  being  put  in  nomination,  he 
was  chosen  by  a  very  large  majority.  The  Rev.  Dr.  Beman  thereupon  announced  to 
Dr.  Fisher  that  he  was  duly  elected  Moderator  of  the  General  Assembly;  and  on  leav- 
ing the  chair,  mformed  him  that  he  was  to  be  governed  in  his  office  by  the  rules  of  the 
General  Assembly  hereafter  to  he  adopted. 

"  The  Rev.  Erskine  Mason,  D.D  was  then  chosen  Stated  Clerk,  and  the  Rev.  E. 
W.  Gilbert  Permanent  Clerk  of  the  General  Assembly. 

"  The  following  notice  had  been  previously  delivered  to  the  Rev.  Dr.  Beman  : 
"'Resolutionof  the  Trustees  of  the  7th  Presbyterian  Church,  adopted  May  7th,  1838. 
*^*  Resolved,  That  the  General  Assembly  of  the  Presbyterian  Church,  which  is  to 
convene  in  Philadelphia  on  the  17lh  inst.  and  which  shall  be  organized  under  the  di- 
rection of  the  Moderator,  and  clerks,  officiating  during  the  meeting  of  the  last  Assem- 
bly, shall  have  the  use  of  the  Seventh  Presbyterian  church  during  tferr  sessions,  to  the 
exclusion  of  every  other  Assembly  or  Convention  which  may  be  organized  during  the 
same  period  of  time. 

(Signed)  JAMES  SCHOTT, 

President  of  the  Bo-ird  of  Trustees.' 
"It  was  moved  and  seconded  that  the  General  Assembly  now  adjourn  to  meet  forth- 
with in  the  Lecture  Room  of  the  First  Presbyterian  Church  in  this  city.     The  motion 
to  adjourn  was  carried  unanimously. 

"  The  Moderator  then  audibly  announced  that  the  General  Assembly  was  so  ad- 
journed, and  gave  notice  that  any  Commissioners  who  had  not  presented  their  Commis- 
sions should  do  80  at  the  First  Presbyterian  church. 

"The  Assembly  being  again  met  at  the  Lecture  Room  of  the  First  Presbyterian 
church,  Dr.  Patton  again  Offered  hie  preamble  and  resolutions,  as  follows,  which  were 
unanimously  adopted :" 


224  PRESBYTERIAN  CHURCH  CASE. 

(The  same  as  before  inserted — Ante,  p.  51.) 

"  Commissions  were  called  for,  and  committed  to  tiie  hands  of  the  Stated  and  Perma- 
nent Clerks. 

"  Adjourned  to  meet  in  this  place  at  4  o'clock,  P.  M. 

"  Concluded  with  prayer." 

The  deposition  of  Rev.  Eliphalet  Nott,  dated  February  26th,  1839,  was 
then  offered.  The  counsel  for  the  relators  objecting  to  certain  parts  of 
it,  the  Court,  after  readinc;  the  deposition,  decided  that  the  portion  relat- 
ing to  the  occurrences  at  the  time  of  the  organization  were  admissible, 
but  that  the  other  portions  were  not. 

Mr.  HiibbcU,  requested  his  Honour  to  note  an  exception,  and  withdrew 
the  offer,  declining  to  present  the  deposition  in  a  mutilated  form. 

Mr.  JBoardman — re-called.  I  have  heard  the  testimony  of  the  several 
witnesses  examined  this  morning,  in  regard  to  the  noise  made  by  the  Old- 
school  party.  Their  statements  are  altogether  counter  to  my  own  strong 
impression  of  the  case,  and  as  to  myself,  are  entirely  unfounded.  To  the 
best  of  my  recollection,  there  was  no  stamping,  or  scraping  with  the  feet, 
in  my  neighbourhood,  or  any  other  indecorous  conduct.  There  may  have 
been  one  or  two  calls  to  order,  but  the  calls  came  chiefly  from  the  Mo- 
derator and  those  in  his  vicinity.  I  heard  nothing  of  the  remarks  of  Mr. 
Gemmell,  that  this  was  pretty  conduct  for  ministers  of  the  Gospel,  &c. 

No  'cross-examination. 

Dr.  Phillips — re-called.  Mr.  Boardman  Sat  in  the  same  pew  with 
me,  or  in  an  adjoining  one.  I  am  positive  that  he  made  no  noise,  and 
that  there  was  nothing  unbecoming  in  his  manner.  There  was  no  scrap- 
ing or  stamping  in  our  vicinity.  There  were  calls  to  order,  in  which  I 
joined.  I  recollect  that  at  some  time  during  the  proceedings  of  the  New- 
school  party,  Mr.  Boardman  remarked  to  me,  "How  true  it  is,  that  whom 
God  has  determined  to  destroy,  he  first  makes  mad."  He  did  not  use  the 
Latin  words,  "  Quern  Deus  vult,&Lc."  but  the  translation. 

No  cross-eocarnination. 

Mr.  Lowrie— re-called.  I  did  not  observe  Mr.  Board  man's  position 
at  all.  From  what  he  says,  I  think  I  must  have  been  in  the  pew  adjoin- 
ing his.  I  sat  next  the  door  of  the  pew.  I  heard  no  coughing  in  my 
neighbourhood:  certainly  there  was  no  legislative  coughing.  There  was 
no  stamping  or  scraping  in  that  part  of  the  house,  and  no  calls,  excepting 
calls  to  order. 

No  cross-examination. 

Mr.  Auchincloss — re-called.  I  was  close  by  Mr.  Boardman,  and  nei- 
ther saw  or  heard  any  stamping,  scraping,  or  rubbing  in  that  vicinity. 

No  cross-examination. 

Mr.  Krebs — re-called.  In  giving  my  testimony,  I  omitted  one  point. 
Dr.  Mason  stated,  that  he  heard  the  name  of  John  Boynton  from  my  lips, 
and  was  surprised  at  it,  as  he  was  not  present.  No  commission  with  his 
name  upon  it,  was  ever  handed  to  me;  his  name  was  never  on  my  roll, 
and  I  never  uttered  it. 

I  wish  also  to  explain  one  thing  in  my  testimony,  in  regard  to  Mr. 
Joshua  Moore.  I  said,  that  the  minute  was  incorrect,  as  to  the  precise 
point  of  time  when  he  presented  his  commission,  and  was  enrolled.  The 
fact  is,  that  there  was  an  interval  between  his  first  appearance,  and  his  pre- 
senting his  commission,  which  he  sent  after  to  his  lodgings. 

Here  the  testimon}'  closed. 


225 


MR.  MEREDITH'S  ARGUMENT. 


SATURDAY  MORNING,  March  16th— 10  o'clock. 

liefore  addressing  the  jury,  I  beg  leave  to  request,  that  your  Honour 
^vIU  take  upon  your  notes  a  few  references  to  points  on  which  my  col- 
league intends  to  insist.  I  shall  not  myself  dwell  upon  any  authorities, 
in  the  course  of  my  argument, 

Jingell  and  Jimes  on  Corporations,  247,  8,  252,  275,  8,  219,  277, 
244,  5. 

I  am  very  glad,  gentlemen  of  the  jury,  that  in  discharging  my  duty  to 
the  relators  in  this  suit,  I  stand  in  a  court  of  the  State  of  Pennsylvania:  1  am 
glad  on  your  account,  as  well  as  on  that  of  others.  In  this  State,  the  law  of 
corporations,  governed  as  it  is  by  the  principles  of  common  sense,  is  so  well 
settled,  so  clearly  determined,  that  it  is  not  necessary  to  go  into  a  length- 
ened exposition  of  it,  or  to  cite  numerous  authorities.  The  question 
which  you  are  to  decide  is  solely  a  question  of  fact:  the  law  applicable  to 
the  facts  is  perfectly  plain  and  simple.  The  controversy  in  which  we 
are  engaged,  is,  however,  one  of  a  very  peculiar  nature — peculiar  as  re- 
gards the  interests  involved,  the  number  of  the  parties  concerned,  and 
the  depth  of  feeling  which  it  has  excited.  I  wish  I  could  sa}'  it  was  an 
unexampled  controversy:  unfortunately  there  have  been  but  too  many 
instances  of  the  same  kind.  Parties  have  but  too  often  divided  religious 
corporations,  and  been  obliged  to  refer  their  differences  to  the  decision  of 
courts  of  law. 

There  is  one  thing  which  I  beg  you  to  observe  in  the  outset:  it  will 
serve  as  a  key  to  the  whole  case.  The  plaintiffs  in  this  suit  do  not  come 
into  court,  as  a  party  desiring  to  deprive  another  of  any  of  its  rights  or 
privileges.  We  have  not  thought  to  exclude  any  portion  of  our  brethren, 
without  trial,  much  less  without  accusation,  from  our  ecclesiastical  con- 
nexion. We  do  not  claim  to  be  the  Presbyterian  Church,  in  contradis- 
tinction to  any  other  body  claiming  that  title.  We  do  not  contend  for  a 
power  like  that  exercised  by  our  brethren  of  the  opposite  party — the 
power  of  deciding  by  our  single  ipse  dixit,  by  a  judgment  given  ex  ca- 
thedra, who  are,  and  who  are  not,  Presbyterians;  and  this  without  leav- 
ing any  chance  of  redress  to  the  party  thus  judged,  if  wronged  by  the 
decision.  I  need  scarcely  add,  that  we,  at  all  events,  do  not  arrogate  to 
ourselves  the  right  of  seizing  and  confiscating  the  properly  of  others  at 
our  will.  We  merely  stand  in  the  defence  of  our  own  rights — our 
own  rights  of  property,  and,  what  is  still  more  important,  our  Christian 
privileges,  and  our  Christian  communion.  I  speak  thus  of  property,  not 
that  it  is  that  for  which  we  are  here  contending,  but  because  the  opposite 
party  have  chosen  so  to  represent  the  case  in  this  respect,  as  to  prejudice 
your  minds,  and  throw  a  false  colouring  over  the  controversy.  A  few 
words,  therefore,  in  regard  to  this  matter  will  conduce  to  a  right  under- 

29 


226  PRESBYTERIAN  CHURCH  CASE. 

You  have  heard  It  stated,  that  it  is  not  the  design  of  our  opponents  to 
affect,  in  the  least,  our  rights  of  property,  but  that  they  are  willing  to 
share  with  us  the  funds  of  the  Church.  Here  are  the  terms  of  compro- 
mise which  are  offered  to  us.  "  We,"  say  our  brethren  on  the  other 
side,  "We  will  take  Princeton  Seminary,  and  we,  the  Old-school  will  be 
the  rightful  successors  in  our  corporate  privileges;  while  you,  the  New- 
school,  are  to  be  considered  as  seceders."  Then  comes  the  clause  provi- 
ding for  this  equal  and  just  division  of  property:  "All  other  funds  shall 
be  equally  divided  between  the  two  bodies,  so  far  as  it  can  be  done  in 
eonformity  with  the  intention  of  the  donors?"  But  the  whole  property 
was  given  by  the  donors  to  the  Presbyterian  Church  in  the  United  States,  , 
and  to  it  alone.  The  moment,  then,  that  you  find  any  property  suscep- 
tible of  division,  this  very  circumstance  shows  that  it  does  not  belong  to 
the  Church,  but  to  some  body  else.  Deny  that  the  New-school  brethren 
are  Presbyterians — deny  them  the  right  of  succession,  and  they  are  a 
body  to  whom  no  one  of  the  donors  ever  intended  a  cent  to  be  appro- 
priated. The  necessary  consequence  is,  that  under  cover  of  this  fair,  just, 
and  liberal  offer,  our  opponents  would  retain  every  particle  of  the  pro- 
perty in  question.  But  we  care  very  little  about  property,  and,  therefore, 
in  our  opening,  laid  very  little  stress  upon  this  point.  For  charity's  sake 
we  might  be  willing  to  relinquish  all  our  interest  in  the  funds  of  the 
Church,  nor  even  interpose  a  plea  for  the  humbler  worshippers  who  have 
raised  their  lowly  temples  for  the  service  of  God  within  the  bounds  of 
those  four  Synods.  We  care  not  much,  even  if  they  all  should  suffer 
under  the  operation  of  the  plan  proposed  by  our  opponents;  even  if  they 
should  be  ejected  by  strangers  from  the  houses  w4iere  their  fathers  have 
worshipped.  To  all  this,  though  with  aching  hearts,  we  might  agree:  all 
would  be  of  less  consequence  than  the  destruction  of  harmony  and  peace. 
We  care  not  for  Church  funds,  and  for  the  sake  of  peace  will  sacrifice 
them;  but  we  cannot,  even  for  peace's  sake,  abandon  our  communion. 
On  the  side  of  our  opponents,  however,  you  see  the  question  of  property 
brought  forward,  as  that  of  primary  importance;  and,  at  the  same  time, 
they  seem  conscious  that  some  explanation  on  this  point  was  necessary. 

This  cause  is  brought  before  you  from  the  necessity  of  the  case:  it  does 
not  involve,  as  it  has  been  said  to  do,  any  question  in  regard  to  theologi- 
cal docirines,  but  merely  a  question  of  law.  Driven  by  what  we  call 
harsh  treatment  and  unjustifiable  violence — by  the  course  of  proceedings 
jpursued  by  our  opponents,  either  to  relinquish  our  rights,  or  appeal  to  the 
laws  of  our  country  for  succour,  we  attempted  in  1838,  a  legal  organization 
of  the  General  Assembly;  but  now  we  find  those,  who  were  really  sece- 
diers  from  the  Presbyterian  Church,  persisting  in  their  unlawful  endea- 
vours to  deprive  us  of  our  dearest  privileges. 

The  simple  question  which  you  have  to  answer,  in  deciding  upon  this 
case,  is,  whether  certain  persons,  the  Relators  in  the  suit,  have  been  duly 
elected  to  fill  the  office  of  Trustees  of  the  General  Assembly.  These 
Trustees  were  incorporated  by  an  act  of  the  legislature  of  Pennsylvania, 
in  the  year  1799,  and  are  therefore  amenable  to  the  general  law  of  corpo- 
rations. Such  is  the  formal  issue  presented  by  the  pleadings,  and  there- 
fore we  were  entitled  to  object  to  the  course  taken  by  the  opposite  counsel 
in  their  defence.  But  we  have  always  desired,  that  the  general  features 
.of  the  whole  case  should  be  developed,  and  that  the  investigation  should 


MR.  MEREDITH'S  ARGUMENT.  227 

not  be  closely  confined  by  mere  technical  rules.  The  determination  of 
the  formal  issue  depends,  altogether,  upon  the  decision  of  another  question — 
a  secondary  issue,  viz;  which  of  two  bodies  that  met  in  1838,  each 
claiming  the  title,  was,  in  fact,  the  true  General  Assembly  of  the  Presby- 
terian Church.  You  will  recollect,  that  the  members  of  the  corporation — 
the  trustees — are  elected  by  the  Assembly,  according  to  the  provisions  of 
the  act  of  1799,  which  gives  that  judicatory  the  power  of  changing  one- 
third  of  the  whole  number  of  trustees  every  year.  Now  a  body  claiming 
to  be  the  General  Assembly,  has  elected  the  Relators  in  this  suit,  to  the 
.office  of  trustees,  and,  in  so  doing,  has  removed  certain  other  persons,  the 
defendants  before  you.  You  will  hear  no  objection  made  to  the  power 
of  the  General  Assembly  to  make  such  a  change.  If  we  Were  the  true 
Assembly,  no  objection  can  be  made  to  our  having  thus  acted:  we  have 
changed  only  one-third  of  the  number  of  corporators,  electing  that  many 
new  trustees,  thereby,  of  course,  removing  an  equal  number  from  their 
offices.  This,  I  say  then,  is  a  secondary  issue — not  a  collateral  one.  Was 
the  body  that  met  in  the  First  Presbyterian  Church,  in  May,  1838,  the 
true  General  Assembly  ? 

Now  I  need  not  tell  you,  that,  for  the  settlement  of  all  such  questions, 
the  law  provides,  and  the  tribunals  of  justice  are  ever  open.  The  adjust- 
ment of  every  claim  and  dispute,  touching  such  public  franchises,  or  grow- 
ing out  of  charters  of  incorporation,  must  of  necessity  be  conformable  to 
the  general  laws  which  govern  corporations. 

The  corporation  now  the  subject  of  your  cognizance,  is  not  of  an  un- 
common species;  but,  at  the  same  time,  is  not  of  the  most  ordinary  kind. 
It  is  a  corporation  composed  of  the  trustees  alone,  but  without  the  power 
of  keeping  up  its  own  succession ;  the  filling  of  all  vacancies,  and  all  changes 
in  its  composition  being  left  to  the  General  Aasembly,  which  is,  therefore, 
though  not  a  corporate  body,  quasi  corporate,  being  similar  to  the  corpo- 
rations of  municipal  towns.  The  members  of  the  Assembly  constitute  the 
electoral  body.  Now,  in  order  to  understand  the  powers  and  organiza- 
tion of  this  Assembly,  it  will  be  necessary  to  look  into  the  Constitution  of 
the  Presbyterian  Church.  Those  parts  of  the  Constitution  which  relate  to 
this  subject,  I  shall  therefore  briefly  explain,  detaining  you  here  but  for  a 
few  moments,  as  I  intend  to  perform  the  tasjt  allotted  to  me  "in  the  short- 
est time,  in  the  fewest  words,  and  with  the  least  interruption  possible," 
hoping  to  give  no  offence.  Unless  you  fully  understand  the  nature  of  this 
Constitution,  you  can  never  fairly  determine  the  matter  in  dispute,  or  com- 
prehend the  relative  positions  of  the  parties. 

The  Constitution,  gentlemen,  contains  among  other  things,  the  Confes- 
sion of  Faith  of  the  Presbyterian  Church;  but  with  that,  fortunately,  we 
have  nothing  to  do.  I  trust  we  should  all  be  disposed  to  treat  questions 
involving  the  consideration  of  that  part  of  the  volume,  in  a  spirit  some- 
what different  from  that,  which  may  not  be  unbecoming  in  the  present 
case.  Here,  I  say,  we  have  nothing  to  do  with  the  larger  and  more 
important  part  of  the  Constitution — that  we  shall  not  touch.  The  Form 
of  Church  Government  is  the  only  portion  to  which  your  attention  need 
be  directed;  and  this  differs,  in  some  respects,  from  the  forms  of  most 
other  Churches.  Presbyterian  government  is  lodged  in  a  succession  of 
judicatories — so  they  are  expressly  and  technically  styled.  These  are 
courts  of  justice,  andjio  proper  legislative  powers  are  delegated  to  any  of 


228  PRESBYTERIAN  CHURCH  CASE, 

them;  though  I  do  not  mean  to  say,  that  no  act  of  discipline  can  be  law- 
fully performed  by  them,  unless  in  a  strictly  judicial  manner:  I  do  not 
deny  them  the  ordinary  rights  of  bodies  corporate,  or  quasi  corporate. 
As  to  the  faith,  the  holy  mysteries  of  religion,  and  the  discipline  of 
the  Church,  they  are  essentially  defined  in  the  book  itself,  and  no  power 
to  pass  them  by,  or  alter  them,  has  been  given  to  any  of  these  Judicatories, 
or  to  all  of  them  combined.     Their  general  powers  are  thus  prescribed: 

"These  Assemblies  ought  not  to  possess  any  civil  jurisdiction,  nor  to 
inflict  any  civil  penalties.  Their  power  is  wholly  moral,  or  spiritual,  and 
that  only  ministerial  and  declarative.  They  possess  the  right  of  requiring 
obedience  to  the  laws  of  Christ,  and  of  excluding  the  disobedient  and  dis- 
orderly from  the  privileges  of  the  church.  To  give  efficiency,  however, 
to  this  necessary  and  scriptural  authority,  they  possess  the  powers  requi- 
site for  obtaining  evidence  and  inflicting  censure:  they  can  call  before 
them  any  offender  against  the  order  and  government  of  the  church;  they 
can  require  members,  of  their  own  society,  to  appear  and  give  testimony 
in  the  cause;  but  the  highest  punishment  to  which  their  authority  ex- 
tends, is  to  exclude  the  contumacious  and  impenitent  from  the  congrega- 
tion of  believers." 

These  courts  or  judicatories  are  of  different  classes.  The  series  com- 
mences with  the  churcli-session,  composed  of  elders  chosen  for  life,  and 
holding  an  inferior  ministerial  station.  Next  comes  the  Presbytery,  con- 
sisting of  all  the  ministers,  there  being  at  least  three,  and  elders,  one  from 
each  congregation,  within  a  certain  district.  Every  minister  in  the  dis- 
trict, and  attached  to  the  Presbytery,  has  a  seat  in  his  own  right,  and  does 
not  sit  by  a  delegated  authority.  The  elders,  or  laymen,  as  they  are 
sometimes  inaccurately  styled,  for  they  are  regularly  ordained  officers,  on 
the  contrary,  sit  merely  as  representatives,  each  church  having  a  bench  of 
elders,  and  delegating  one  of  them  to  represent  it  in  Presbytery.  In  the 
session,  or  primary  court,  the  elders  have  seats  in  their-own  right.  They 
form  a  tribunal  in  every  particular  church,  chosen  it  is  true  by  the  people, 
who  may,  therefore,  be  styled  in  one  sense,  electors,  but  ordained  for 
life.  They  sit  together  in  the  body,  the  minister  presiding.  In  the 
Presbytery  all  the  ministers  sit  in  their  own  right,  the  elders  by  right  of 
representation.  The  Synod,  to  which  appeals  lie  from  the  Presbyteries, 
is  composed  of  representatives  from  those  bodies.  The  General  Assem- 
bly, however,  which  our  present  inquiries  principally  concern,  passes  over 
the  Synods  in  its  organization,  its  members  not  sitting  by  right  of  repre- 
sentation from  those  judicatories,  but  being  elected  by  the  various  Pres- 
byteries. Therefore  the  General  Assembly,  as  to  the  cognizance  of  ap- 
peals, is  the  next  higher  court  to  the  Synod,  but  as  to  its  constitution,  has 
no  reference  to  the  Synods;  but  each  JPresbytery  has  a  right  of  represen- 
tation therein,  by  a  certain  ascertained  number  of  delegates,  proportioned 
to  its  size.  All  this  may  be  made  as  plain  as  A,  B,  C,  by  comparing  the 
Presbyterian  system  of  government  to  the  civil  polity  of  this  State.  The 
Presbyteries  are  like  the  several  counties  of  Pennsylvania,  each  of  which 
has  the  right  of  representation  in  the  legislature.  The  Synods  are  similar 
to  our  judicial  districts,  composed  of  three  or  more  counties,  with  the 
right  of  appeal  to  the  Supreme  Court.  These  counties  have  an  indefeasi- 
ble right  to  be  represented;  and  such  is  the  right  of  the  Presbyteries  to 
send  delegates  to  the  General  Assembly. 


MR.  MEREDITH'S  ARGUMENT.  229 

"  The  General  Assembly  is  the  highest  judicatory  of  the  Presbyterian 
Church.  It  shall  represent  in  one  body,  all  the  particular  churches  of 
this  denomination;  and  shall  bear  the  title  of  The  General  Assembly 

OF  THE  PrESBTTERIAN  ChURCH  IN  THE  UnITED  StATES  OF  AMERICA." 

"  The  General  Assembly  shall  consist  of  an  equal  delegation  of 
Bishops  and  Elders  from  each  Presbytery,  in  the  following  proportion, 
&c." 

The  powers  of  this  Assembly  are  prescribed  in  the  Constitution.  It  is 
as  I  have  explained,  composed  of  representatives  from  all  the  Presbyte- 
ries. When,  therefore,  the  right  of  an  individual  to  sit  in  this  body,  for 
the  purpose  of  voting  in  the  election  of  trustees,  is  called  in  question,  we 
need  ask,  only,  is  the  Presbytery  from  which  he  comes  in  connection 
with  the  Presbyterian  Church;  and  has  he  been  duly  elected?  Both 
these  inquiries  being  answered  in  the  affirmative,  his  right  is  undoubted. 

The  General  Assembly  has  certain  officers,  to  assist  in  the  conduct  of 
its  business.  These  officers  are  of  different  kinds.  The  first  and  highest 
is  nam.ed  the  Moderator,  being  the  presiding  officer;  and  no  doubt  this 
title  originated  in  the  nature  of  his  duties,  which  were  to  moderate  the 
Assembly — to  heal  up  wounds  inflicted  in  the  excitement  of  debate,  to 
cool  the  heats  produced  by  sudden  collisions,  and  to  suppress  disorder. 

"  It  is  equally  necessary,"  says  the  Constitution,  "  in  the  judicatories 
of  the  church,  as  in  other  assemblies,  that  there  should  be  a  moderator 
or  president;  that  the  business  may  be  conducted  with  order  and  des- 
patch." 

Then  it  goes  on  to  enumerate  his  powers,  which  are  those  of  an  ordi- 
nary speaker;  after  which  follows  the  regulation,  that, 

"  The  moderator  of  the  Presbytery  shall  be  chosen  from  year  to  year, 
or  at  every  meeting  of  the  Presbytery,  as  the  Presbytery  may  think  best. 
The  moderator  of  the  Synod,  and  of  the  General  Assembly,  shall  be 
chosen  at  each  meeting  of  those  judicatories*  and  the  moderator,  or,  in 
case  of  his  absence,  another  member  appointed  for  the  purpose,  shall 
open  the  next  meeting  with  a  sermon,  and  shall  hold  the  chair  till  a  new 
moderator  be  chosen." 

These  are  the  constitutional  provisions,  in  regard  to  the  office  of  Mo- 
derator. Then  the  other  officers,  the  clerks,  which  are  also  absolutely 
necessary  to  every  organized  body,  are  provided  for.  The  next  chapter 
commences  thus: 

"  Every  judicatory  shall  choose  a  clerk,  to  record  their  transactions, 
whose  continuance  shall  be  during  pleasure." 

The  clerks,  therefore,  hold  their  offices,  as  it  is  expressly  provided,  du- 
ring the  pleasure  of  the  judicatory;  consequently  they  may  be  removed 
at  any  time.  To  be  chosen  by  the  body  to  record  its  proceedings,  it  is 
not  necessary  that  a  person  should  be  a  member.  If  this  be  disputed,  we 
can  show  that  the  point  was  at  one  time  raised  in  the  Assembly,  and  a 
formal  decision  given,  that  membership  was  not  necessary.  I  suppose 
Dr.  McDowell  was  not  a  member  of  the  Assembly  of  1838. 

We  now  turn  to  another  part  of  the  Constitution,  the  rules  which  govern 
the  General  Assembly  when  organized.  Having  briefly  described  the 
Presbyterian  form  of  government,  as  to  tiie  organic  structure  of  the  several 
judicatories  in  the  Church,  trat;ing  them  down  to  their  origin,  in  the  ordi- 
nation of  bishops  andjruliiig  elders,  we  come  to  the  action  of  the  Assem- 


230  PRESBYTERIAN  CHURCH  CASE. 

bly,  which  is  regulated  by  permanent  and  unchanging  rules.  Those  to 
which  I  now  direct  your  attention  are  found  under  the  head  of  "actual 
Process." — Book  of  Discipline,  Chap.  IV. 

Mr,  Meredith  here  read  a  large  part  of  this  chapter.  We  refer  the 
reader  to  page  28  of  our  report.     After  reading  sect.  S,  he  observed, 

Some  "  counsel  learned  in  the  law"  must  have  drawn  up  these  rules — > 
some  one  familiar  with  the  law  relating  to  indictments  for  crime.  Here^ 
you  see,  a  provision  is  made  for  the  proof  of  an  alibi — the  only  prudent 
defence,  as  old  Mr.  Weller  thought,  in  any  case.  If  we  could  prove  an 
alibi  here,  it  would  be  of  essential  service.  We  could  demonstrate  that 
we  were  members  of  the  Assembly,  if  we  could  only  show  that  we  lived 
out  of  the  infected  district. 

This  then  is  the  sort  of  action  in  regard  to  offences,  which  is  within  the 
power  of  the  Assembly.  The  form  of  criminal  process  is  in  every  parti- 
cular regulated  by  the  fundamental  provisions  of  the  Constitution  itself. 
In  a  subsequent  part  the  nature  of  the  offences  for  which  this  disciplinary 
process  is  prescribed,  is  explained:   Chap.  V,  Sect.  13. 

"Heresy  and  schism  may  be  of  such  a  natureas  to  infer  deposition;  but 
errors  ought  to  be  carefully  considered;  whether  they  strike  at  the  vitals 
of  religion,  and  are  industriously  spread;  or,  whether  they  arise  from  the 
weakness  of  the  human  uuderstanding,  and  are  not  likely  to  do  much  in- 

"A  minister  under  process  for  heresy  or  schism,  should  be  treated  with 
christian  and  brotherly  tenderness.  Frequent  conferences  ought  to  be 
held  with  him,  and  proper  admonitions  administered.  For  some  more 
dangerous  errors,  however,  suspension  may  become  necessary. 

"If  the  Presbytery  find,  on  trial,  that  the  matter  complained  of,  amounts 
to  no  more  than  such  acts  of  infirmity  as  may  be  amended,  and  the  people 
satisfied;  so  that  little  or  nothing  remains  to  hinder  his  usefulness,  they 
shall  take  all  prudent  measures  to  remove  the  offence." 

These  rules  provide  for  the  case  of  heresy  and  schism — for  any  viola- 
tion of  the  doctrine  or  of  the  discipline  of  the  Church.  I,  if  a  Presbyte- 
rian, which  I  am  not,  would  be  pronounced  a  heretic  in  a  moment.  Al- 
though I  am  happy  to  believe  that  there  is  no  material  difference  between 
this  sect  and  that  to  which  I  belong,  that  they  both  agree  in  all  that  is  es- 
sential to  Christianity,  I  do  not  believe  in  the  peculiar  doctrines  of  Presby- 
terianism,  and  therefore,  if  professing  to  belong  to  that  Church,  might  be 
justly  censured  as  a  heretic.  I  do  not  believe  in  the  divine  institution  of 
an  order  of  Church  officers  called  ruling-elders,  chosen  and  ordained  for  life 
— I  am  an  Episcopalian.  If  a  Presbyterian,  I  should  be  a  heretic,  because 
I  differ  from  the  standards  of  that  sect  in  a  matter  of  faith.  Discipline  is 
established  merely  for  convenience,  and  relates  to  matters  which  are  non- 
essential; and  he  who  who  offends  against  rules  of  discipline  is  a  schis- 
matic— attempts  a  neologism.  But  he  who  departs  from  the  faith  of  the 
Church,  the  essence  of  which  is  believed  to  be  of  divine  institution,  is 
guilty  of  heresy.  It  is  no  answer,  therefore,  to  say  to  a  man,  who  belongs 
to  the  Presbyterian  Church;  who  has  adopted  its  Confession  of  Faith; 
who  has  lived  forty  years  in  its  communion;  who  has  subscribed  to  its 
funds,  and  participated  in  all  its  trials  and  conflicts — it  is  a  poor  answer 
to  such  a  man,  or  to  a  hundred  thousand  of  such  men,  to  say,  "You  are 
very  good  men;  you  may  be  Christians,  for  aught  we  know,  but  you  arc  not 


MR.  MEREDITH'S  ARGUMENT.  23 X 

Presbyterians.  We  don't  charge  you  with  any  offence — no  offence  at  all — 
you  are  guilty  of  none;  hut  you  hold  false  doctrine.  You  may  be  good 
Episcopalians,  or  good  Catholics;  or,  as  one  of  my  learned  friends  has 
suggested,  if  not  Christians  at  all,  you  may  be  very  good  Turks ;  you 
may  be  exactly  suited  to  the  longitude  of  Constantinople;  but  here  you 
are  interlopers.  We  do  not,  however,  accuse  you  of  any  thing  Infamous: 
we  do  not  even  call  you  fanatics — we  wish  to  be  perfectly  polite.  We 
only  hold  you  to  be  parasites;  and  we  say  that  you  form  a  nucleus 
around  which  fanatics  always  gather;  still  you  are  very  worthy,  very 
polite  men: — You  exhibit  every  virtue  in  your  intercourse  with  your 
neighbours;  you  are  honest,  industrious,  and  sober;  but  somehow  or 
other  your  house  is  the  resort  of  all  the  drunkards  in  the  ward.  Pray,  gen- 
.tlemen,  don't  get  into  a  heat;  we  mean  nothing  personal  by  this;  it  is  all 
said  in  a  parliamentary  sense."  I  say,  and  so  says  the  Constitution,  that 
these  are  offences — offences  for  which  a  criminal  process,  and  criminal 
punishment  are  provided.  If  a  man  in  connexion  with  the  Presbyterian 
Church,  refuses  to  conform  to  its  doctrines  and  order,  or  violates  its  rules 
of  discipline,  he  is  an  offender;  and  it  is  not  necessary,  that  he  should  be 
also  a  bad  man,  to  make  him  guilty  of  an  indictable  offence.  I  have  read 
to  you  passages  from  the  Constitution,  which  show,  that  the  punishment 
of  heresy  and  schism  are  expressly  provided  for.  It  clearly  points  out  a 
mode  in  which  those  guilty  of  these  ecclesiastical  crimes  may  be  brought 
to  trial,  and  censured  or  expelled. 

I  have  thus  endeavoured  to  give  you  a  full  understanding  of  the  consti- 
tution and  nature  of  the  respective  judicatories  of  the  Presbyterian  Church, 
as  necessary  to  the  comprehension  of  the  mode  of  proceeding,  which  is 
clearly  provided,  for  the  punishment  of  heresy  and  schism;  and  to  your 
arriving  at  a  satisfactory  result,  in  regard  to  the  matters  which  are  to  be 
found  by  you,  under  the  instructions  of  the  court.  We  have  shown  to 
you,  by  the  evidence  produced  on  the  part  of  the  Relators,  that,  from  1S02, 
until  after  the  commencement  of  the  session  of  the  Assembly  of  1837, 
not  all  of  them,  indeed,  during  the  whole  of  that  interval,  but  having  been 
formed,  at  different  periods,  and  every  one  in  full  existence  at  the  time 
last  mentioned,  there  were  among  others,  four  particular  Synods,  contain- 
ing twenty-eight  Presbyteries,  represented  in  the  General  Assembly. 
These  bodies,  in  1S37,  embraced  five  hundred  and  ninety-nine  churches, 
five  hundred  and  nine  ministers,  and  near  sixty  thousand"  communicants. 
1  mention  the  number  of  communicants  merely,  not  taking  into  account 
the  much  larger  mass  of  humbler  worshippers,  who  had  not  ventured  to 
join  the  spiritual  communion  of  the  Church,  but  who,  nevertheless  were 
entitled  to  a  representation.  I  do  not  mean  that  these  worshippers  were  en- 
titled to  a  direct  representation;  but  they  were  certainly  entitled  to  be- 
come members,  unless  found  faulty  in  the  initiative  examination,  and  were 
thus  capable  of  acquiring  the  right,  while,  in  the  meantime,  they  were 
worshippers,  according  to  the  faith  of  their  Church,  and  the  customs  of 
their  forefathers.  Of  these  Presbyteries  only  I  take  notice,  for  fear  of 
embarrassing  you,  by  larger  arithmetical  calculations.  I  do  not  include  the 
Third  Presbytery  of  Philadelphia,  which  contains  some  of  the  most  an- 
cient churches  in  the  city,  among  others  the  first  one  in  which  a  Presby- 
terian ever  worshipped  God  in  this  place,  and  also  the  next  to  this,  in 
point  of  age — the  case  of  that  Presbytery,  that  you  may  suffer  less  em- 


232  PRESBYTERIAN  CHURCH  CASE. 

barrassment,  I  do  not  introduce,  except  to  say  that  it  was  dissolved  by  the 
Assembly  of  1S3S.  We  shall  direct  your  attention  only  to  the  four  Sy- 
nods above  mentioned,  thirteen  of  which  were  formed  before  the  year 
1821,  a  fact  which  may  prove  to  be  important. 

Now,  I  say,  that  from  the  minutes,  the  best  evidende  of  which  the  case 
admits,  evidence  which  is  undenied,  it  has  been  conclusively  proved,  that 
from  1802  to  1837,  these  Presbyteries,  all  according  to  their  respective 
ages,  had  been  in  every  possible  way,  recognised  as  a  part  of  the  Presby- 
terian Church.  What?  is  not  the  proof  as  strong  as  any  testimony  could 
make  it?  It  would  be  burning  daylight  to  attempt  further  to  substantiate 
the  fact.  First,  their  commissioners  sitting,  acting,  and  voting,  year  by 
year,  in  the  General  Assembly.  Secondly,  the  record  of  these  bodies  re- 
gularly sent  up  to  that  judicatory  for  examination,  and  in  almost  every  in- 
stance approved.  In  the  Synod  of  the  Western  Reserve,  on  one  occasion, 
a  sentiment  had  been  expressed,  in  regard  to  a  point  which  we  would  not 
have  considered  of  any  vital  importance — that  the  institution  of  ruling- 
elders  was  not  essential  to  salvation,  or  to  Presbyterian  cliurch  order.  To 
that  the  Assembly  did  not  agree;  but  with  this  exception,  I  believe  the 
record  was  approved.  They  were  recognised  in  that  way;  and  in  the  next 
place,  by  the  receipt  of  their  contributions,  poured  into  the  common  trea- 
sury during  this  period.  They  were  recognised  by  the  appointment  of 
several  of  their  members,  at  different  times,  to  various  offices  in  the  Church. 
The  next  fact  proving  their  recognition,  is  their  being  mentioned  in  the 
statistical  tables,  digested  from  the  reports  of  the  Presbyteries,  which  the 
Assembly  has  directed  to  be  put  every  year  upon  the  minutes;  in  which 
tables  they  are  mentioned  uniformly,  no  distinction  being  made  between 
them  and  other  judicatories,  which  are  still  acknowledged  to  be  strictly 
Presbyterian.  Now  what  is  to  establish  the  rights  of  any  man  breathing, 
who  comes  as  a  delegate,  from  a  body  claiming  the  privilege  of  represen- 
tation, if  we  have  not  in  the  present  case  established  the  right  of  these 
judicatories?  Their  commissioners  being  received  by  the  Assembly, and 
they  making  their  report  to  that  body,  sitting,  debating,  and  acting  in  it. 
Any  other  Presbyteries — the  First  of  Philadelphia,  or  the  Presbytery 
of  New  Brunswick,  might  be  challenged  to  give  more  conclusive  evidence 
than  we  have  given,  of  their  belonging  to  the  Church.  Just  as  well  might 
the  Assembly  undertake  to  exclude  any  Presbytery,  or  church  in  Penn- 
sylvania, as  these. 

The  Assembly  is  a  body  of  limited  powers.  It  has  been  said  that  it  has 
the  right  of  Judging  of  the  election  of  its  own  members.  This,  as  a  law- 
yer, I  deny:  it  has  no  such  power,  unless  it  proceeds  by  the  process  of  a 
formal  trial.  Suppose,  that  after  one  of  its  sessions  is  half  over,  because 
some  particular  motion  is  not  carried,  you  report  that  a  certain  Presbytery 
is  not  a  constituent  part  of  the  Church,  and  that  its  commissioners  have  no 
right  to  sit.  What  can  they  show  to  prove  their  right,  but  that  the  re- 
presentatives from  that  Presbytery  have  always  been  received  and  ac- 
knowledged; that  it  was  even  a  party  to  the  adoption  of  the  Constitution? 
What  more  could  they  show?  But  all  this  we  have  shown.  In  1821,  thir- 
teen of  these  Presbyteries  had  already  been  admitted,  one  in  1802,  and 
the  others  subsequently.  For  seventeen  or  eighteen  years,  therefore, 
they  had  been  component  parts  of  the  Church.  In  1821,  the  Asseml)ly 
proposed  certain  amendments  and  alterations  of  the  Constitution,  and  these, 


MR.  MEREDITH'S  ARGUMENT.  233 

as  was  necessary,  were  sent  down  to  all  the  Presbyteries  to  be  passed 
upon  by  them.  The  thirteen  Presbyteries  mentioned,  passed  upon  that 
constitution,  and  it  was  adopted  by  their  votes,  joined  to  the  votes  of  the 
others.  It  would  bq  burning  daylight  to  detain  you  on  this  point.  The 
human  imagination  cannot  invent  proof  more  conclusive  than  that  which 
we  have  given  here.  These  Presb_)  series  send  commissioners,  who  sit  and 
act  in  the  Assembly;  their  records  are  examined  and  approved;  they  join 
in  the  formation  of  the  Constitution  of  the  Church;  and,  now,  in  lti37, 
their  delegates  are  actually  sitting.  Recollect,  therefore,  that,  at  the  open- 
ing of  the  Assembl}'  of  1837,  there  was  competent  evidence  of  the  right 
'of  those  Presbyteries  to  be  represented.  This  right  had  never  to  that  hour 
been  doubted — I  beg  pardon:  I  mean  to  say  no  man  had  openly  doubted 
it;  th<'\t  no  notice  had  been  given  of  any  such  doubt.  At  the  opening  of 
the  Assembly  of  1837,  and  for  some  time  afterwards,  they  were  treated 
as  undisputed  members  of  the  Church. 

I  have  said  that  it  is  in  evidence,  that  thirteen  of  these  Presbyteries 
joined  in  the  adoption  of  the  present  Constitution.  Their  rights,  then, 
were  as  the  rights  of  the  thirteen  Old  States,  u'hich  had  united  in  forming 
the  constitution  of  this  country;  and  as  well  might  Rhode  Island,  or  South 
Carolina  be  turned  out  of  the  confederation,  because  we  did  not  like  their 
votes;  as  well  might  we  deny  that  they  ever  had  been  members,  as  dis- 
pute the  right  of  these  Presbyteries.  I  admit  that  if  false  doctrines,  or  a 
laxity  of  discipline  had  been  discovered;  if  heresy  or  schism,  had  been 
found  to  exist;  if  any  member  of  a  Presbytery  had  acted  in  violation  of  the 
established  rulesof  order  and  discipline,  he  might  have  been  subjected  to  an 
ecclesiastical  trial,  to  censure,  and  even  to  expulsion.  But  there  is  a  wide 
difference  between  a  liability  to  exclusion  by  the  sentence  of  a  regular  tri 
bunal,  after  trial,  and  to  the  mere  arbitrary  fulminations  of  such  a  body  as 
the  General  Assembly.  This  point  is  so  clear,  that  I  pass  on.  No  im- 
partial man  can  doubt,  that  these  Presbyteries  were  as  much  entitled  to 
their  accustomed  representation,  as  any  one  of  the  thirteen  original  states 
to  theirs  in  Congress. 

So  stood  the  Presbyteries  embraced  within  these  four  Synods,  regularly 
received  and  recognised,  and  their  commissioners  acting  with  the  Assem- 
bly, at  and  after  the  commencement  of  its  sessions  in  1837.  Now  having 
brought  them  thus  far,  it  is  necessary  that  I  should  go  back  to  the  history 
of  another  series,  or  of  two  other  distinct  series,  of  events. 

From  the  earliest  period  of  the  existence  of  this  Church,  as  appears  from 
the  express  terms  of  several  written  acts  of  the  General  Assembly — acts 
which,  for  the  honour  of  religion,  I  hope  were  passed  for  the  purposes 
expressed  upon  their  face,  and  not  for  those  which  have  here  been  opened 
to  you  by  the  opposite  counsel — from  the  earliest  times  to  which  our  evi- 
dence goes  back;  from  the  very  infancy  of  the  Church,  it  has  been  its 
practice  to  associate  itself  in  different  ways  with  brethren  of  other  kindred 
persuasions.  Now  it  is  necessary,  that  I  should  present  to  you  a  brief 
outline  of  these  associations — of  their  nature,  character,  and  extent,  in  or- 
der that  you  may  understand  the  relation  which  was  borne  to  these  cog- 
nate churches.  Then  I  shall  endeavour  to  distinguish  between  the  asso- 
ciations to  which  I  refer,  and  another  matter,  which  has  been  confused 
with  them,  and  which  it  has  been  the  main  effort  of  our  opponents  to  re- 

30 


234  PRESBYTERIAN  CHURCH  CASE. 

present  as  the  same  thing — the  same  as  to  its  purposes,  and  the  end  to  be 
accomplished.     You  will,  I  trust,  see  the  difference. 

The  terms  of  all  but  one  of  these  associations  "  plans  of  union  and  cor- 
respondence "  as  these  are  called,  may  be  found  in  the  Assembly's  Di- 
gest. They  were  the  acts  of  the  elder  patriarchs  of  the  Church;  and  for 
your  satisfaction,  I  shall  refer  to  them,  that  you  may  compare  them  with 
the  acts  of  those,  whom  for  distinction's  sake,  I  shall  call  the  juvenile  pa- 
triarchs— those  who  have  in  these  latter  days  taken  the  Church  under 
their  particular  charge. 

The  first  plan  of  union  was  that  formed  in  1792.  I  am  happy  to  say, 
while  speaking  of  the  patriarchs  who  formed  these  various  plans,  that 
one  of  them  still  survives;  and  that  every  act  of  this  kind  had  the  advan- 
tage of  his  concurrence,  and  his  wisdom.  I  refer  to  Dr.  Green.  In  1792 
a  "  plan  of  union  and  correspondence  with  the  General  Association  of 
Connecticut"  was  adopted  by  the  Assembly. — Assem.  Dig.  p.  292. 

"  The  Minutes  of  the  Convention  of  the  Committees  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States,  and  of  the 
Oeneral  Association  of  the  State  of  Connecticut,  were  taken  into  conside- 
ration, an  extract  of  which  is  as  follows:" 

A  note  to  this  paragraph  states  that  the  convention  spoken  of  "  origi- 
nated in  measures  adopted  by  the  General  Assembly  in  1790  and  1791, 
for  affecting  this  union  of  intercourse."  So  you  see  that  the  Assembly 
invited  their  Congregational  brethren  to  associate  with  them. 

"'  Considering  the  importance  of  union  and  harmony,  in  the  Christian 
church,  and  the  duty  incumbent  on  all  its  pastors  and  members  to  assist 
each  other,  in  promoting,  as  far  as  possible,  the  general  interest  of  the 
Redeemer's  kingdom;  and  considering  further,  that  Divine  Providence 
appears  to  be  now  opening  the  door  for  pursuing  these  valuable  objects, 
with  a  happy  prospect  of  success; 

" '  This  convention  are  of  opinion,  that  it  will  be  conducive  to  these  im- 
portant purposes — ' " 

These  important  purposes  are  those  which  I  ascribe  to  the  respected 
men  who  entered  into  the  negociations.  We  shall  in  a  little  while,  show 
the  purposes,  which  are  ascribed  to  them  by  the  other  party. 

" '  That  a  Stmiding  Committee  of  Correspondence,  be  appointed  in 
each  body,  whose  duty  it  shall  be,  by  frequent  letters,  to  communicate  to 
each  other,  whatever  may  be  mutually  useful  to  the  churches  under  their 
care,  and  to  the  general  interest  of  the  Redeemer's  kingdom. 

"  '  That  each  body  should  from  time  to  time  appoint  a  committee  con- 
sisting of  three  members,  who  shall  have  a  right  to  sit  in  the  other's 
general  meeting,  and  make  such  communications  as  shall  be  directed  by 
their  respective  constituents,  and  deliberate  on  such  matters  as  shall  come 
before  the  body;  but  shall  have  no  right  to  vote. 

'"That  effectual  measures  be  mutually  taken  to  prevent  injuries  to  the 
respective  churches,  from  irregular  and  unauthorized  preachers.'  " 

Then  follow  the  measures  proposed  for  this  purpose.    " ' and  also 

that  every  preacher  travelling,  and  recommended  as  above,  and  submit- 
ting to  the  stated  rules  of  the  respective  churches,  shall  be  received  as  an 
authorised  preacher  of  the  gospel,  and  cheerfully  taken  under  the  patron- 
age of  the  Presbytery,  or  Association,  within  whose  limits  he  shall  find 
tmployment  as  a  preacher.'         **».»*#** 


MR.  MEREDITH'S  ARGUMENT,  235 

"  Upon  mature  deliberation,  the  Assembly  unanimously  and  cordially- 
approved  of  the  said  plan,  and  to  carry  the  same  into  effect,  appointed— the 
Rev.  Dr.  John  Rogers,  Dr.  John  Witherspoon,  and  Dr.  Ashbel  Green" — 
names  which  must  ever  stand  high  in  the  history  of  this  Church— 
"  to  be  a  committee  of  correspondence,  agreeably  to  the  said  plan:  and  it 
is  moreover  agreed,  that  this  Assembly  will  send  delegates,  to  sit  and 
consult  with  the  General  Association  of  Connecticut,  and  receive  their 
delegates  to  sit  in  this  Assembly,  agreeably  to  another  article  of  the  plan, 
as  soon  as  due  information  shall  be  received,  that  it  is  adopted  on  the  part 
of  the  General  Association  of  Connecticut." 

Then  follows  the  appointment  of  "  a  standing  committee  to  certify  the 
good  qualifications  of  the  preachers  travelling  to  officiate  in  the  bounds  of 
the  Association  of  the  State  of  Connecticut;"  and  the  ratification  of  the 
plan  by  that  body.  In  1794  an  alteration  in  the  plan  was  proposed  by 
the  Assembly. 

"  On  motion,  ordered,  that  the  delegates  appointed  from  the  General 
Assembly  to  the  General  Association  of  Connecticut  propose  to  the  As- 
sociation, as  an  amendment  to  the  articles  of  intercourse  agreed  upon  be- 
tween the  aforesaid  bodies,  that  the  delegates  from  these  bodies,  respec- 
tively, shall  have  a  right,  not  only  to  sit  and  deliberate,  but  also  to  vote 
in  all  questions  which  shall  be  determined  by  either  of  them: — And  to 
communicate  the  result  of  their  proposal  to  the  next  General  Assembly." 

This  amendment  was  agreed  to  by  the  Association,  as  its  scribe,  Jona- 
than Edwards,  certifies. 

The  next  plan  of  intercourse  entered  into  by  the  Assembly,  was  that 
with  the  Convention  of  Vermont,  proposed  by  the  former,  in  1803. 
Jlssem.  Dig.  p.  300.     The  terms  of  this  plan  were: 

"  I.  Each  body  shall  send  one  or  two  delegates,  to  meet  and  sit  with 
the  other,  at  the  stated  sessions  of  each  body  respectively. 

"II.  The  delegate  or  delegates  from  each  respectively  shall  have  the 
privilege  of  joining  in  the  discussions  and  deliberations  of  the  body,  as 
freely  and  fully,  as  their  own  members. 

"  III.  That  the  union  and  intercourse  may  be  full  and  complete  be- 
tween the  said  bodies,  the  delegate,  or  delegates  from  each  respectively, 
shall  not  only  sit  and  deliberate,  but  also  act  and  vote." 

This  plan  was  ratified  by  the  Convention,  and  adopted  by  the  General 
Assembly.  Subsequently,  I  believe,  the  right  of  voting  was  taken  away 
from  the  delegates  for  whose  appointment  it  provides.  That  was  done 
in  these  latter  times  by  the  juvenile  patriarchs. 

With  the  General  Association  of  New  Hampshire  a  similar  union  was 
formed  in  1810.  Assem.  Dig.  p.  303.  The  proposal  in  this  instance 
seems  to  have  come  from  the  Association.  The  plan  was  formed  on  the 
same  principles  as  that  with  the  General  Association  of  Connecticut,  and 
the  commissioners  appointed  to  make  the  proposal  to  the  Assembly,  being 
invited  to  sit  as  members  of  that  body,  "  accordingly  took  their  seats." 
The  provision  in  regard  to  the  delegates  voting,  was  subsequently  altered, 
the  right  to  vote  being  taken  away. 

With  the  General  Association  of  Massachusetts  a  like  union  was  esta-- 
tablished  in  1811.  Assem.  Dig.  p.  305.  The  proposal  came  from 
that  body  and  was  accepted  by  the  Assembly.  This  plan  conferred 
the  right  of  voting^n  the  respective  delegates,  a  provision  which,  in 


236  PRESBYTERIAN  CHURCH  CASE. 

this  case  also,  was  subsequently  abandoned.  The  next  thing  in  the  Di- 
gest is  the  mode  of  electing  such  delegates,  adopted  by  the  Assembly  in 
1796.      Page  307. 

In  1802,  the  Presbytery  of  Albany  communicated  to  the  Assembly  the 
terms  of  a  plan  of  friendly  correspondence  between  that  Presbytery,  and 
a  body  known  as  the  Northern  Associate  Presbytery,  agreed  upon  by  a 
joint  committee.     The  terms  were, 

"  1.  That  there  shall  be  occasional  communion  between  the  members 
of  the  particular  churches,  subordinate  to  these  Presbyteries  respectively. 

"  2.  That  there  be  a  friendly  interchange  of  "services  among  the  minis- 
ters: and, 

"  3.  That  each  Presbytery,  while  in  session,  may  invite  members  oc- 
casionally present  from  the  other,  to  sit  as  corresponding  members: 
********  **** 

"The  Assembly  after  due  examination  and  deliberation,  expressed 
their  approbation  of  the  said  plan  of  correspondence." — tdssem.  Dig.  p, 
309. 

An  association  with  the  Reformed  Dutch,  and  Associate  Reformed 
Churches  also  was  proposed  in  1798.  In  that  year  "committees  from 
the  three  churches  met  in  convention,  and  agreed  that  the  plan  of  inter- 
course, having  for  its  basis  the  preservation  of  the  several  ecclesiastical 
judicatories  concerned  in  a  state  entirely  separate  and  independent; 
should  embrace 

"I.  The  communion  of  particular  churches; 

"II.  A  friendly  interchange  of  ministerial  services;  and, 

"  III.  A  correspondence  of  the  several  judicatories,  of  the  conferring 
churches. 

"This  plan  was  unanimously  approved  by  the  General  Assembly;  but 
it  was  not  accepted  by  the  judicatories  of  the  other  churches." — */issem. 
Dig.  p.  311. 

It  appears  then  that  down  to  the  year  1811,  beginning  with  the  plan  of 
union  with  the  General  Association  of  Connecticut,  adopted  in  1792,  there 
were  no  less  than  six  of  these  agreements  entered  into  between  the  As- 
sembly and  other  cognate  bodies,  by  which  the  ordinations  of  each  were 
mutually  recognised,  ministers  allowed  to  make  friendly  interchanges  of 
service,  and  the  travelling  ministers  of  one  denomination  received  by  all 
the  others.  The  Assembly,  in  most  instances,  sought  this  intercourse,  and 
was  the  first  to  propose  the  mutual  appointment  of  delegates,  with  powers 
to  sit  and  vote  in  each  other's  judicatories.  Such  was  the  close  and  inti- 
mate nature  of  the  union  which  that  body  saw  fit  to  maintain  with  kin- 
dred associations,  and  which  was  not  regarded  as  any  violation  of  Presby- 
terian doctrine  or  discipline,  until  were  introduced  these  neologisms,  the 
inventions  of  latter  days.  Down  to  this  period,  the  patriarchs  of  the 
Church  sought  every  means  of  enlarging  her  communion,  for  the  purpose 
which  is  set  forth  in  the  book  from  which  I  have  justread — the  extension 
of  the  Redeemer's  kingdom,  overlooking  all  minor  and  unimportant  ditfer- 
rences  of  religious  opinion,  and  tlie  Assembly  itself  seeking  the  union,  it 
being  the  more  numerous  body,  and,  in  order  to  have  some  share  of  con- 
trol in  the  other  associations,  seeking  the  right  of  sitting  and  voting  in 
them,  by  delegation,  and  giving  the  same  right  in  return  to  all  of  them, 
except  the  Associate  Reformed  and  Dutch  Reformed  Churches,  which 


MR.  MEREDITH'S  ARGUMENT.  237 

had  never  a  right  to  vote.  This  policy  was  observed  from  a  very  early 
period  down  to  lSll,and  may  be  traced  to  a  much  later  time.  We  could 
show  several  acts  in  confirmation  of  this,  but,  for  fear  of  wearyino;  your 
patience  shall  refer  to  only  one;  and  that  dates  as  lately  as  the  year  1821, 
when  some  of  the  senior  members  of  the  band  of  juvenile  patriarchs  must 
have  begun  to  break  through  the  shell.  Not  satisfied  with  plans  of  mere 
correspondence  and  association — the  informal  admission  of  cognate  bo- 
dies to  their  fellowship,  they  brought  a  whole  Church  into  direct  and 
full  communion  with  them,  taking  away  every  shadow  of  distinction 
.between  the  two,  without  dreaming  of  any  limit  to  their  power  in  this 
respect.  In  1821,  the  General  Assembly  made  a  proposition  to  the 
General  Synod  of  the  Associate  Reformed  Church,  that  the  two  Churches 
should  be  united.  This  was  acceded  to  by  the  Synod,  and  the  coalition 
was  actually  consummated. 

Mr.  Meredith  here  read  the  whole  of  the  extracts  from  the  minutes  of 
1821,  p.  9;  and  1822,  p.  11;  which  are  given  at  length,  a7ite  p.  126.  As 
he  did  not  comment  upon  them  while  reading,  we  merely  refer  to  that 
page. 

Now,  as  to  the  other  associate  bodies,  with  which  the  General  Assem- 
bly entered  into  plans  of  intercourse,  we  have  no  precise  evidence  as  to 
their  faith  or  discipline.  As  to  the  Associate  Reformed  Church,  howe- 
ver, we  have  the  testimony  of  its  own  Constitution.  I  have  looked  over 
this  volume  cursorily,  but  as  I  have  not  got  it  here,  must  state  from 
memory,  the  differences  between  it  and  the  Presbyterian  Constitution, 
which  I  have  observed.  The  terms  of  union  saved  to  each  of  the  respec- 
tive bodies  the  right  of  preserving  its  own  Presbytei'ial  organization  and 
form  of  government.  The  differences  which  I  shall  notice  are,  I  admit, 
slight  and  immaterial;  still  they  will  throw  some  light  on  the  course  and 
policy  of  the  Assembly  towards  cognate  bodies.  The  first  difference, 
however,  is  very  material,  if  we  believe  that  the  subject  of  it,  as  an  article 
of  faith,  is  essential  to  salvation — it  is  in  the  part  relating  to  civil  magis- 
trates. In  the  Confession  of  Faith  of  the  Presbyterian  Church,  there  is  a 
slight  departure,  in  this  respect,  from  the  Westminster  Confession  of 
Faith,  in  order  to  accommodate  it  to  the  circumstances  of  this  country. 

"Civil  magistrates  may  not  assume  to  themselves  the  administration  of 
the  word  and  sacraments;  or  the  power  of  the  keys  of  the  kingdom  of 
heaven;  or,  in  the  least,  interfere  in  matters  of  faith.  Yet,  as  nursing 
fathers,  it  is  the  duty  of  civil  magistrates  to  protect  the  church  of  our 
common  Lord,  without  giving  the  preference  to  any  denomination  of 
Christians  above  the  rest  in  such  a  manner,  that  all  ecclesiastical  persons 
whatever,  shall  enjoy  the  full,  free,  and  unquestioned  liberty  of  discharg- 
ing every  part  of  their  sacred  functions,  without  violence  or  danger. 
And,  as  Jesus  Christ  hath  appointed  a  regular  government  and  discipline 
in  his  Church,  no  law  of  any  commonwealth,  should  interfere  with,  let, 
or  hinder  the  due  exercise  thereof,  among  the  voluntary  members  oi  any 
denomination  of  Christians,  according  to  their  own  profession  and  belief. 
It  is  the  duty  of  civil  magistrates  to  protect  the  person  and  good  name  of 
all  their  people,  in  such  an  effectual  manner  as  that  no  person  be  suffered, 
either  upon  pretence  of  religion  or  infidelity,  to  offer  any  indignity,  vio- 
lence, abuse,  or  injury  to  any  other    person  whatsoever;    and  to   take 


238  PRESBYTERIAN  CHURCH  CASE.  • 

order,  that  all  religious   and  ecclesiastical   assemblies  be  held  without 
molestation  or  disturbance."— Co;?/  of  Faith,  Chap.  XXIIL  Sect.  3. 

Now  there  is  a  variation  from  this  in  the  book  of  the  Associate 
Reformed  Church.  I  do  not  look  upon  it,  however,  as  a  material  diffe- 
rence. There  is  another  in  the  Form  of  Government  which  is  more  ma- 
terial—in that  part  establishing  the  basis  of  representation.  There  may- 
be other  discrepances;  but  these  two  are  the  only  ones  which  I  shall  ven- 
ture to  state  now  from  memor)-.  By  the  Presbyterian  Constitution,  a 
Presbytery  must  be  composed  of  not  less  than  three  ministers,  with  as 
many  elders  as  there  may  be  within  particular  bounds. 

"Any  three  ministers  and  as  many  elders  as  may  be  present  belonging 
to  a  Presbytery,  being  met  at  the  time  and  place  appointed,  shall  be  a 
quorum  competent  to  proceed  to  business." — Form  of  Gov.  Chap.  X. 
Sect.  7. 

Of  course,  under  this  rule,  no  Presbytery  can  exist  in  a  district  which 
does  not  contain  at  least  three  ministers.  In  the  Associate  Reformed 
Church  however,  no  particular  number  of  ministers,  as  necessary  to  the 
existence  of  a  Presbytery,  is  specified,  and  two  are  sufficient.  Conse- 
quently, as  each  Presbytery  of  that  denomination,  was  after  the  union, 
entitled  to  at  least  one  delegate  in  the  Assembly,  in  the  same  manner  as 
each  Presbytery  before  belonging  to  the  Assembly,  two  ministers  of  the 
Associate  Reformed  Church  might  have  the  same  representation  in  that 
judicatory,  as  three  Presbyterian  ministers.  These  two  differences  may 
not  be  very  material,  but  still  they  are  differences. 

I  may  mention  a  third  variation,  if  indeed  it  be  a  variation.  Supposing 
the  system  of  doctrines  the  same  in  both  Churches,  the  terms  of  subscrip- 
tion are  different.  I  notice  that  the  Associate  Reformed  Church  requires 
— I  have  not  the  book  before  me — that  the  Confession  of  Faith  should  be 
received  only  for  substance  of  doctrine.  But  one  of  the  main  accusations 
made  by  our  opponents  against  the  members  of  the  exscinded  Synods,  is, 
that  they  profess  to  have  accepted  the  Presbyterian  Confession  only  for 
substance.  It  seems  to  be  a  most  fortunate — I  will  not  say  providential — 
circumstance — certainly  it  is  a  peculiar  advantage  to  the  cause  of  justice, 
in  this  case,  that  whenever  the  opposite  party  have  attacked  and  slurred 
either  the  principles  or  practice  of  my  clients,  we  find  them  directly  cen- 
suring the  most  formal  and  solemn  acts  of  the  General  Assembly  itself. 

Now  suppose  that  this  is  a  matter  of  vital  importance;  and  that  the  As- 
sembly formed  associations  with  various  bodies,  bona  fide,  for  the  pur- 
poses which  are  set  forth  in  the  Digest,  considering  them  as  holding  the 
essential  doctrines  of  the  Christian  faith,  and  for  the  sake  of  peace  and 
union,  overlooking  differences  in  non-essential  points.  1  trust,  gentlemen, 
that  no  man  will  prevail,  in  an  attempt  to  convince  you,  that  the  Assem- 
bly acted  with  a  purpose  different  from  that  avowed;  to  lead  you  to  sup- 
pose, that  from  1792,  to  1S21,  while  making  professions  of  this  kind,  that 
body  was  really  and  truly  adopting  these  measures  for  temporary  pur- 
poposes,  thinking  to  make  the  brethren  of  kindred  Churches  their 
dupes,  and  to  cast  them  off,  whenever  strong  enough  to  do  without  their 
assistance.  Then  in  all  such  cases;  or  take  for  example  the  instance  of  the 
Associate  Reformed  Church — in  that  instance  the  Assembly  has  admitted 
to  its  communion,  persons  who,  on  the  face  of  their  confession  of  faith, 
acknowledged  more  error,  than  all  that  we  are  charged  with.      Indeed  no 


•  MR.  MEREDITH'S  ARGUMENT.  339 

<&ffence  was  formally  alleged  against  us.  Proselytes  have  been  made  from 
Jews,  Turks,  and  Infidels,  who,  on  showing  their  belief  in  the  essential 
doctrines  of  Christianity  have  been  permitted  to  join  the  Presbyterian 
communion.  But  here,  five  hundred  ministers,  formall)^  admitted  into  the 
Ohurch,  having  subscribed  its  Confession  of  Faith  and  Form  of  Govern- 
ment, and  amenable  to  the  Church  courts,  if  they  have  in  any  respect  failed 
of  their  duty,  on  a  mere  suggestion,  by  a  simple  resolution,  no  reasons  be- 
ing given,  are  suddenly  exscinded.  They  are  not  excluded,  but  told, 
"  You  have  never  belonged  to  us.  The  property  which  you  have  sub- 
scribed will  be  given  up  to  you,  if  the  will  of  the  donors  permit."  Then 
in  the  next  breath,  "  You  have  no  right  to  it:  you  must  leave  the  Church. 
We  consider  you  as  seceders.  You  are  respectable  men,  moral  men,  very 
good  men:  we  find  no  fault  with  you,  any  more  than  we  do  with  the 
Turks."  If  such  is  the  policy  of  the  Presbyterian  Church,  I  should  be 
unwilling  for  it  to  be  publicly  believed.  They  have  taken  into  their  com- 
munion their  Associate  Reformed  brethren,  who  adopt  the  Westminster 
Confession  of  Faith  only  for  substance.  These  are  the  words  in  the  book 
of  that  Church.  These  brethren  profess  nothing,  except  that  they  agree 
with  the  Presbyterians  in  the  substance  of  their  doctrines;  yet  are  they 
admitted.  Well  then,  on  the  principle  that  all  these  unions  were  tempo- 
rary, the  General  Assembly  may  say,  '<Here  is  the  Confession  of»  Faith. 
You  say  you  adopt  it  only  for  substance  of  doctrine.  We  don't  mean  to 
persecute  you;  we  don't  impute  any  offence.  But,  as  your  votes  don't 
suit  us,  it  is  evident  you  never  belonged  to  us.  Go  as  Lot  went — go  in 
peace.  As  to  the  funds  to  which  you  have  contributed,  they  shall  be  di- 
vided if  the  intention  of  the  donors  will  permit." 

Much  as  the  best  of  men  may  be  blinded  by  passion,  to  the  light 
which  heaven  sheds  upon  their  path;  much  as  they  may  yield  to  the 
temptations  of  their  weaker  nature,  I  will  never  believe  that  during  forty 
years  and  upwards,  the  patriarchs  of  the  Presbyterian  Church,  have 
formed  repeated  unions  with  the  brethren  of  various  sects  upon  their  bor- 
ders, avowing  one  purpose,  and  covertly  acting  with  another;  and,  that 
now,  having  waxed  strong  by  the  assistance  of  these  associations — the 
lion's  cub  having  been  sustained  until  it  has  grown  to  its  full  power — 
they  will,  for  this  reason,  say  to  their  deluded  brethren,  "  You  are  not  of 
us:  you  never  belonged  to  us:  go  into  the  desert  with  your  flocks  and 
your  herds." 

I  have  thus  shown  the  course  of  policy  pursued  by  the  Presbyterian 
Church  towards  sister  Churches;  her  liberal  terms  to  proselytes  from 
other  sects;  her  arms  being  ever  open  to  receive  into  her  communion  all 
those  not  differing  materially  from  her  standards  of  faith.  If  there  be  any 
truth  in  a  record,  these  recorded  proceedings  of  the  patriarchs  of  the 
Church  cannot  be  denied.  The  series  of  acts,  however,  which  I  have 
described,  are  not  so  material  in  themselves,  as  from  the  bearing  which 
they  are  alleged  to  have  upon  another  act,  which  nevertheless  is  of  an 
entirely  different  aspect,  and  was  intended  to  subserve  a  different  pur- 
pose. It  is  an  act  of  much  importance  in  this  case;  for  on  it  the  rights  of 
my  clients  rest,  if  I  can  show  that  they  are  in  the  right,  which  I  appre- 
hend I  shall  make  as  clear  to  your  perceptions  as  the  sun  at  noon-day.  I 
refer  to  the   "  Plan  of  Union"  of  1801. 

An  attempt,  no  doubt,  will  be  made  to  confuse  this  act  with  the  others 


240  PRESBYTERIAN  CHURCH  CASE.  • 

that  have  been  exhibited  to  you;  to  convince  you  that  they  are  all  of  the 
same  nature.  But  I  tell  j'ou,.  gentlemen,  they  are  of  a  totally  different 
aspect — as  different  as  they  can  be  in  their  practical  effects.  Those  were 
plans  of  intercourse  and  correspondence,  or  acts  formally  embracing  whole 
bodies  of  men  who  held  the  doctrines  and  adhered  to  the  discipline  of  the 
Presbyterian  Church.  This  act  was  totally  different:  it  concerned  noth- 
ing but  the  relaxation  of  the  rules  of  the  Ciiurch  in  a  few  unessential  points 
of  discipline.  It  originated  in  a  proposition  made  by  the  Assembly  to  the 
Genera!  Association  of  Connecticut. 

Mr.  Meredith  here  read  the  "Plan  of  Union,"  for  which  we  refer  the 
reader  to  page  48,  an/e. 

The  Minutes  of  1801,  show  that  Dr.  Green  was  a  member  of  the  As- 
sembly by  which  this  plan  was  proposed,  and  I  take  for  granted  that  he 
concurred  in  its  adoption. 

Now,  what  is  the  meaning  of  this  act?  It  does  not  admit  any  body 
into  the  Presbyterian  Church,  nor  does  it  provide  for  the  appointment  of 
Congregational  delegates  to  sit  in  the  General  Assembly.  ]^o  person 
who  is  not  a  Presbyterian  acquires  by  virtue  of  it  the  right  to  sit  in  any 
of  the  judicatories  of  this  Church.  It  speaks  for  itself  clearly  and  dis- 
tinctly; it  permits  certain  relaxations  of  discipline,  in  regard  to  Congre- 
gational churches  and  ministers,  or  promises  to  overlook  them.  If  a 
Presbyterian  congregation  calls  and  settles  a  clergyman  of  another  sect, 
this  is  a  breach  of  discipline.  And  if  a  particular  body  of  people  be  half 
of  them  Presbyterians  and  the  other  half  Congregationalists,  these  two 
portions  cannot  unite,  and  form  a  single  church,  without  losing  each  its  ec- 
clesiastical standing.  This  is  the  necessary  law  of  every  denomination. 
If  an  Episcopalian  or  Catholic  clergyman  preaches  to  a  Presbyterian  con- 
gregation, agrees  to  relinquish  his  own  forms  of  worship,  this  is  the 
worst  sort  of  schism,  because  it  confuses  things  that  ought  to  be  kept  to- 
tally distinct.  So  an  Episcopalian  or  Catholic  congregation,  if  it  calls  a 
Presbyterian  minister,  whose  ordination  their  Church  does  not  recognise 
as  valid,  are  guilty  of  a  breach  of  ecclesiastical  discipline.  And  in  the 
same  wa)''  here,  where  there  was  an  intermixture  of  Presbyterians  and 
Congregationalists,  a  like  difficulty  was  experienced.  But  by  the  act 
of  ISOl,  passed  by  the  highest  judicatory  of  the  Presbyterian  Church, 
they  said,  a  Presbyterian  minister  may  officiate  for  a  Congregational  con- 
gregation; and  a  Presbyterian  congregation  may  call  a  Congregational 
pastor,  without  forfeiting  their  Presbyterial  character.  And  a  mixed 
people  may  retain  the  favour  of  their  respective  Churches,  although  join- 
ed together  in  a  single  flock.  And  in  the  isolated  case  of  such  a  mixture 
of  the  sects  in  a  single  body,  and  of  a  dispute  arising  between  two  mem- 
bers of  the  body,  one  a  Presbyterian  and  the  other  a  Congregationalist,  in 
that  isolated  case,  where  an  appeal  is  made  to  the  Presbytery,  the  inferior 
court  of  the  mixed  church  shall  be  represented  by  one  of  its  members  in 
the  Presbytery  while  the  latter  is  trying  such  appeal. 

This  is  the  whole  scope  of  the  plan:  all  the  wit  of  man  cannot  stretch 
its  provisions  farther.  It  does  not  give  a  single  Congregationalist  the 
right  to  sit  in  Presbytery.  A  Presbyterian  minister,  in  that  district, 
may  go  and  preach  to  a  Congregational  church,  may  remain  with  them 
as  their  pastor,  without  committing  a  breach  of  discipline;  or  rather,  the 
Assembly  agree  to  pass  over  his  offence,  for  the  sake  of  peace  and  bar- 


•  MR.  MEREDITH'S  ARGUMENT.  241 

mdrty,  and  the  extension  of  the  Redeemer's  kingdom — matters  of  para- 
mount importance.  Such  a  minister  before,  would  have  been  liable  to 
process:  he  might  have  been  tried  and  punished.  But  here,  the  highest 
court  of  the  Church^  says  to  him,  "You  shall  not  be  tried;  we  will  not 
consider  that  you  have  committed  any  offence;  or,  atany  rate,  we  guaran- 
tee to  you  a  free  pardon."  This  act  concerned  not  the  general  administra- 
tion of  the  government  of  the  Presbyterian  Church  incorporated  by  the 
legislature;  but  it  concerned  the  personal  standing  only  of  individual 
Jnembers  of  that  Church — nothing  else.  It  said  to  ministers,  ''  You  shall 
jiot  lose  your  ecclesiastical  character,  by  preaching  to  a  Congregational 
congregation,  and  considei'ing  them  as  your  pastoral  charge."  So  also 
the  m.embers  of  a  Presbyterian  church,  who  wish  to  call  a  Congregational 
minister,  not  differing  in  doctrine  from  themselves,  "  You  may  have  such 
a  minister."  Therefore  a  Presbyterian  minister  preaching  to  a  Congre- 
gational church,  retains  his  right  to  a  seat  in  the  Presbytery,  but  the 
church  does  not,  by  the  connexion,  acquire  any  right  to  representation  there; 
except  that  a  mixed  congregation  may  depute  one  of  its  members  to  sit 
in  that  judicatory,  while  an  appeal  from  their  decision  is  tried.  On  the 
other  hand,  a  Presbyterian  church,  settling  a  Congregational  minister, 
may  send  an  elder  to  the  Presbytery,  but  their  pastor  cannot  claim  a  seat. 
Into  the  body  of  the  frame  work  of  the  government,  cannot  come  a  sin- 
gle man  who  is  not  a  strict  Presbyterian  r  all  others  are  excluded.  I  say 
then  that  these  were  measures  deserving  of  praise — wise  measures,  as 
they  affect  in  this  way,  only  the  personal  standing  of  individuals,  but 
do  not  allow  a  single  member  of  another  denomination  to  enter  the  tribu- 
nals of  the  Church. 

Now  the  legitimate  effect  of  the  appeal  or  abrogation  of  this  "Flan  of 
Union"  was  that,  from  the  time  of  the  repeal,  these  acts  of  irregularity, 
these  breaches  of  discipline  might  no  longer  be  overlooked;  that  if,  after- 
wards, a  Presbyterian  minister  should  accept  the  call  of  a  Congregational 
church  to  be  their  pastor,  and  should  settle  with  them,  he  might  be  brought 
to  trial  and  expelled.  That  if  the  Congregational  church  chose  to  retain 
him,  and  he  to  remain  with  them,  ecclesiastical  censures  having  failed  to 
destroy  the  connexion,  he  might  be  detruded  from  the  Presbyterian 
communion.  This,  and  this  only,  was  the  legitimate  effect  of  the  repeal. 
In  other  words,  it  removed  the  injunction  on  all  the  "  missionaries  to  the 
new  settlements,  to  endeavour,  by  all  proper  means,  to  promote  mutual 
forbearance  and  accommodation,  between  those  inhabitants  of  the  new  set- 
tlements who  hold  the  Presbyterian,  and  those  who  hold  the  Congrega- 
tional form  of  church  government."  The  repeal  made  it  the  duty  of 
Presbyterians,  not  to  endeavour,  any  longer,  to  promote  peace  and  har- 
mony. They  must  put  themselves  aipart  from  those  with  whom  they 
had  been  accustomed  to  associate;  must  come  out  of  the  common  fold  in 
which  they  and  their  Congregational  brethren  had  been  so  long  gathered 
in  unity  and  peace.  It  said  to  the  latter,  "  We  have  done  caring  for  you. 
When  we  were  young  and  weak,  we  joined  our  lot  with  you  for  a  season, 
while  we  might  increase  in  strength;  but  this  union  was  only  intended 
to  be  temporar}^  We  cannot  any  longer  consent  to  touch  the  abomina- 
tions of  your  faith.  The  time  for  harmony  and  brothrrly  love  is  past. 
We  now  come  to  you  with  the  sword,  determined  to  put  down  your 

31 


242  PRESBYTERIAN  CHURCH  CASE. 

heathenish  doctrines.     We  shall  exclude  you  for  ever  from  our  company, 
if  you  don't  ahandon  them," 

In  1835,  the  Assembly  did  thus  repeal  the  '•'  Plan  of  Union,"  as  to  its 
future  operation,  but  with  the  reservation  of  the  rights  of  churches 
formed  under  it.  Here  was  -a  minister,  who  for  forty  years  had  been 
pastor  of  a  Congregational  church;  who  had  beheld  the  members  of  his 
little  flock  growing  up  about  him,  and  was  bound  to  them  by  the  ties  of 
spiritual  parentage.  He  was  not  to  be  compelled  suddenly  to  abandon 
his  people,  because  they  were  suspected  of  Congregationalism.  On  the 
other  hand,  here  was  an  humble  Presbyterian  congregation,  who,  not 
able  to  find  a  pastor  of  their  own  sect,  had  followed  the  advice  of  the 
Assembly,  and  chosen  a  Congregationalist  to  break  to  them  the  bread  of 
life.  They  were  not  now  to  be  forced  to  drive  away  from  them  their 
pastor  in  his  old  age — him,  who  had  ministered  to  them  even  from  their 
infancy.  Would  this  have  been  kind;  would  it  have  been  generous — not 
to  speak  of  its  legality  ?  Would  it  have  exemplified  the  spirit  of  Christian 
charity?  In  1S35,  the  Assembly 

"Resolved,  That  this  Assembly  deem  it  no  longer  desirable  that 
churches  should  be  formed  in  our  Presbyterian  connexion  agreeably  to  the 
plan  adopted  by  the  Assembly,  and  the  General  Association  of  Connecti- 
cut, in  1801.  Therefore,  Resolved,  that  our  brethren  of  the  General 
Association  of  Connecticut  be,  and  they  hereby  are,  respectfully  requested 
to  consent  that  said  plan  shall  be  from  and  after  the  next  meeting  of  that 
Association,  declared  to  be  annulled.  And,  Resolved,  that  the  annulling 
of  said  plan  shall  not  in  anywise  interfere  with  the  existence  and  lawful 
operations  of  churches  which  have  been  already  formed  on  this  plan." 

That  is  churches  composed,  each  of  its  minister  and  congregation. 
Thus  a  church,  of  which  the  minister  was  not  a  Presbyterian,  need  not  on 
that  account  discard  him;  and  still  their  ruling-elders  might  have  a  re- 
presentation in  Presbytery.  Their  minister  never  had  had  a  right  to  sit 
in  that  judicatory;  there  is  no  evidence  that  any  Congregational  minister 
ever  claimed  a  right  to  a  seat  there.  No  such  right  ever  existed.  In 
1835  it  was  resolved,  that  no  new  connexions  of  this  kind  should  there- 
after be  formed;  but  kindly  and  generously,  not  to  break  the  ties  already 
binding  closely  together  so  many  pastors  and  flocks. 

Now  you  see,  gentlemen,  from  this  short  explanation,  the  entire  differ- 
ence between  the  act  of  1801,  and  the  plans  of  intercourse  with  other 
denominations  before  mentioned.  These  were  plans  either  of  correspon- 
dence and  intercourse;  or  for  incorporating  one  body  with  another.  That 
merely  a  waver  of  the  right  to  inflict  discipline  in  individual  cases,  from 
motives  that  do  honour  to  the  pious  fathers  of  the  Church — to  the  vene- 
rable man  whose  name  is  connected  with  its  history  from  the  earliest 
time;  vindicating  his  character  from  the'aspersions  which  have  been  cast 
so  lavishly  upon  his  doings,  amid  ceaseless  professions  of  respect  and  re- 
verence for  his  person,  not  for  a  single,  a  casual  act,  but  for  forty  years  of 
untiring  and  consistent  labour,  to  promote  the  peace  and  harmony  of  his 
Redeemer's  kingdom,  ending  in  the  Assembly  of  1835,  with  the  act  just 
read,  to  which  no  doubt  he  cheerfully  consented.  These  men  at  that 
time,  had  no  right  to  say,  "  We  were  seduced  into  this  connexion.  The 
best  part  of  our  lives  has  been  consumed  in  the  service:  some  of  us  have 


MR.  MEREDITH'S  ARGUMENT.  243 

laboured  thus  for  forty  years.   It  is  too  late  for  us  to  form  new  connexions. 
And  must  we  do  this,  or  be  driven  from  the  bosom  of  our  Church?" 

Thus  the  matter  stood  at  the  commencement  of  the  meeting  of  the  As- 
sembly in  1837,  to  which  we  now  come  back.     Thus  it  stood,  or  seemed 
to  stand:  because,  though  it  is  not  in   evidence,  yet  one  of  the  opposite 
counsel  in  his  opening  has  admitted — we  are  thankful  for  his  candour; 
and,  indeed,  there  has  been  no  want  of  candour  on  the  part  of  these  gen- 
tlemen— has  admitted,  that  among  the  commissioners  who  were  sent  up 
to  the  Assembly  of   1837,  there  were  those  who  considered  that  body 
but  nominally,  as  some  believed  it  really,  a  homogeneous  bod)'^,  all  its 
members  being  bound  together  in  the  same  faith  and  discipline,  and  per- 
sonifying the  peace,  union,  and  harmony  of  the  Church  which  they  repre- 
sented.,   This  was  the  opinion  of  a  large  portion,  certainly,  of  the  dele- 
gates, while  the  other  portion,  as  we  are  told,  came  up  to  meet  their  un- 
suspecting brethren  predetermined  on  two  points.     First,  they  had  re- 
solved that  the  differences  in  doctrine  which  they  supposed  to  exist,  and 
in  regard   to  which  the  Church  was  nearly  equally  divided,  should  be 
finall)^  settled  at  this  meeting  of  the  Assembly.     And,  secondly,  the  same 
body  avowed  their  determination  not  to  submit  to  the  General  Assembly 
constituted  as  their  book  prescribed,  and  as  for  forty  years  it  had  been 
constituted,  but  that  the  final  decision  of  the  questions  which  were  to  be 
agitated,  should  be  influenced  by  the  votes  of  none  but  those  whom  they 
thought  fit  to  vote.     In  the  prayer  at  the  commencement  of  the  session, 
in  which  all  united,  there  was  doubtless  a  petition  for  the  peace  and  har- 
mony of  the   Church;  and  yet  these  men  had  resolved,  that,  before  any 
important  question  should  be  decided,  they  would  exclude  from  their 
councils  a  portion  of  their  brethren.     Well  might  the  doctrines  of  the 
Church  be  finally  and  conclusively  settled,  to  their  own  liking,  if  they 
first  excluded  all  who  were  expected  to  oppose  their  measures:  this  was 
a  new  mode  of  instituting  a  curia  advisare.     Instead  of  subjecting  the 
proposed  questions  to  the  regularly  constituted  tribunal,  they  first  turn  out 
all  that  don't  agree  with  themselves,  and  in  this  way  secure  a  decided 
majority.     Not  in  the  true  Christian  spirit,  regarding  the  slight  errors  of 
their  brethren,  as  the  mere  sallies  of  weak  humanity,  which,  at  most,  de- 
served but  to  be  rebuked  as  faults;  but — I  say  it,  because  it  .is  an  admitted 
fact,  a  fact  candidly  disclosed  to  you  in  the  opening — coming  to  meet  their 
unsuspecting  brethren,  with  the  fixed  resolve,  that  those  questions  of  doc- 
trine, which  the  juvenile  patriarchs  had  prepared  for  the  consideration  of 
the  Assembly,  should  not  be  decided  until  they  had  expelled  a  sufficient 
number  of  the  members  to  insure  a  decision  suitable  to  their  views,  and 
to   place  themselves  in  a  permanent  majority.     Now,  in  the  first  place, 
I  say  this  was  an  unlawful  combination.     I  stand  here,  regarding  this  as 
a  corporate  question,  upon  the  laws  of  the  land.     Looking  at  the  Assem- 
bly as  a  quasi  corporation,  I  say  that  if  the  Old-school  brethren  came 
with   such  a   purpose,  they  had  formed  an  unlawful  combination.     And 
that  no  acts  affecting  the  corporate  body  could  be  valid,  when  these  acts 
commenced  in  the  condemnation  of  brethren,  against  whom  they  were  all 
pledged  to  bring  in  a  verdict  of  guilty.     In  the  next  place,  I  say,  with 
great  submission,  though  I  shall  not  stop  here  to  make  any  professions  of 
respect,  that  even  in  an  assembly  of  the  world,  such  conduct  would  not 
be  considered  entirely  candid.     It  is  not  the  mode  in  which  members  of 


244  PRESBYTERIAN  CHURCH  CASE. 

the  same  body  should  meet — one  portion  of  them  open  as  the  day,  and 
with  no  secret  purposes,  coming  to  consult  with  their  peers;  the  other 
coming  with  a  covert  design  larking  in  their  breasts — a  determination  to 
strike  a  blow,  at  the  earliest  possible  opportunity,  which  should  cut  off 
their  unsuspecting  brethren  from  their  fellowship.  Whether  such  a  de- 
sign was  entirely  Christian,  I  do  not  pretend  to  judge.  I  can  speak  for  it 
in  a  worldly  and  legal  point  of  view,  and  in  these  alone.  If  they  were  in 
the  right,  I  thank  God  that  such  a  duty  did  not  fall  on  me. 

This  predetermination  of  the  Old-school,  is  a  key  to  all  that  has  hap- 
pened since,  the  subsequent  acts  of  both  parties  being  conformed  to  the 
general  scheme  above  described.  One  side  always  open  and  confiding, 
asking  to  consult  with  their  brethren  on  the  affairs  of  the  Church;  the  other 
coming  up  with  a  fixed,  determined  purpose,  which  they  have  now 
avowed,  to  exclude  a  portion  of  the  commissioners. 

Thus  the  two  parties  stood  in  the  Assembly  of  1837,  at  the  opening  of 
its  session.  These  gentlemen  from  the  four  Synods  vvere  afterwards  de- 
clared not  to  be  members  of  the  Presbyterian  Church,  though  some  of 
them  had  been  acknowledged  as  such  for  forty  years,  and  though  the  Pres- 
byteries to  which  they  belonged  had  assisted  in  the  formation  of  the  Con- 
stitution of  1S21,  and  at  the  commencement  of  this  very  Assembly,  they 
had  been  admitted  to  their  seats  without  debate.  The  clerks  had  no  diffi- 
culty at  that  time  in  deciding  whether  their  names  should  be  enrolled.  In 
1837,  though  the  plan  had  been  preconcerted — and  why  that  particular 
year  had  been  fixed  upon  by  the  Old-school  I  do  not  profess  to  know, 
though  perhaps  I  might  guess — there  was  not  the  least  hesitation  about 
the  reception  of  these  men.  Dr.  Elliott  then  had  no  scruples  of  con- 
science in  regard  to  their  admission.  No  question  was  raised  touching 
their  right  to  sit:  and  no  doubt,  in  their  minds,  the  fallacious  hope  was 
excited,  that  by  the  action  of  this  Assemlily,  the  borders  of  the  Church  of 
Christ  would  be  enlarged,  that  nothing  would  occur  to  endanger  its  union 
and  harmony.  Near  two  weeks  elapsed,  and  they  still  sat  as  unquestioned 
members  of  the  judicatory.  In  the  mean  time  there  was  no  disclosure 
made  by  the  Old-school,  of  their  ultimate  designs;  but  they  proposed  to 
divide  the  Church,  to  destroy  that  union  which  they  had  all  sworn  to  pro- 
mote. They  contended  that  the  only  way  of  securing  harmony  and  union 
was  to  enforce  a  separation.  Even  to  this,  the  party  whom  I  represent, 
patient  and  long-suffering,  agreed:  they  acquiesced  in  the  division  of  the 
Church.  The}^  had  no  preconcerted  purpose;  were  pledged  to  no  parti- 
cular measures:  they  answered,  "If  this  be  the  only  chance  of  peace,  we 
are  willing  to  separate  from  you;  we  acquiesce  even  in  division."  The 
Old-school,  with  a  settled  scheme  of  action  in  their  minds,  make  a  propo- 
sition for  a  treaty.  They  propose,  that  the  New-school,  who  desire  no 
separation,  who  adhere  to  the  Confession  of  Faith  and  Form  of  Govern- 
ment, should,  in  the  first  place,  acknowledge  that  they  are  not  of  the 
Presbyterian  Church.  "As  to  the  property,"  say  they — "we  have  no  dis- 
position to  quarrel  with  you  about  property.  We'll  keep  Princeton  Semi- 
nary, established  partly  by  your  contributions,  partly  by  ours,  and  partly 
by  the  funds  of  the  Associate  Reformed  Chiu'ch.  As  to  the  other  pro- 
perty, we  intend  to  be  very  liberal.  We  will  give  you  full  half  of  it,  if 
the  intention  of  the  donors  will  permit;  that  is  half  of  all  which  by  acci- 
njent  the  donors  did  not  give  to  the  General  Assembly  of  the  Presbyte- 


-      MR.  MEREDITH'S  ARGUMENT.  «|45, 

rian  Church."  "  Well,"  say  the  others,  "will  you  let  us  be  one  of  the 
successors  of  the  General  Assembly?  As  you  have  made  no  charge 
against  us,  as  we  have  hitherto  formed  one  association  of  brethren,  as  we 
have  been  coming  up  together  year  by  year  to  our  Jerusalem,  we  ask  as  a 
small  boon,  that  we  may  be  one  of  the  successors  of  the  Church.  You 
allow  that  we  are  not  apostates,  but  unfortunate  collisions  have  occurred, 
difficulties  springing  from  various  minute  sources,  differences  arising  from 
the  frailties  of  human  character.  If  you  insist  on  division,  we  agree,  but 
leave  us  the  right  of  succession."  "We,"  say  their  opponents,  "  claim  to 
be  the  true  and  only  Assembly:  you  may  take  what  other  name  you  please. 
As  to  the  property,  the  law  of  course  will  decree,  that  all  which  was  given 
to  the  General  Assembly  shall  remain  with  us,  the  successors  of  that  body, 
.If  you  can  find  any  other  property  belonging  to  us,  that  we  will  divide." 
My  clients  had  exercised  the  most  christian  long-suffering.  They  made  na 
difficulty  as  to  any  other  proposition,  though  offered,  with  a  knife  at  their 
throats.  But  now  they  were  asked  to  put  upon  the  record,  a  confession 
that  they  were  no  part  of  the  Church  of  their  fathers;  that  they  were  not 
successors  to  the  inheritance  of  its  original  doctrines;  that  they  were  false 
apostates  from  the  faith.  Their  patient  forbearance  defied  the  power  of 
%vrong,  until  they  were  asked  to  confess  that  they  were  not  of  the  true 
Church.  An  equal  division  of  the  succession  was  not  allowed — succes- 
sion which  is  the  life  of  the  Church.  They  were  willing  to  leave  all  the 
property  in  the  possession  of  those  gentlemen;  but  they  refused  to  aban- 
don entirely  their  history  and  their  succession;  and  this  any  man  must 
have  refused,  having  the  ordinary  feelings  of  humanity. 

I  do  not  know,  gentlemen  of  the  jury,  why  their  request  was  denied:  I 
can  see  no  reason  for  it  but  the  desire  to  quarrel.  They  were  told  to 
4ibandon  all  the  recollections  of  their  lives,  even  from  earliest  infancy;  to 
confess  themselves  no  longer  steadfast  in  the  faith  which  their  mothers 
had  taught  them.  But  why  was  all  this?  Why  must  they  sacrifice  all 
their  fondest  recollections,  and  destroy  the  tenderest  ties?  Why  sever 
the  most  sacred  cord  that  vibrates  in  the  human  heart?  Why  should  they 
be  denounced  as  apostates,  or  as  Turks?  You  may  take  all  our  property, 
and  we  will  go  forth  from  among  you  a  small  and  humble  band:  You 
say  that  you  are  strong  enough  to  form  an  Assembly  by  yourselves,  and 
there  can  be  no  peace  and  harmony  while  we  remain  among  you.  But 
don't  deny  us  the  right  of  looking  back  to  the  religion  of  our  ancestors. 
We  can  never  record  ourselves  as  heretics  and  apostates. 

The  next  thing  proposed,  and  it  was  proposed  the  moment  that  this  ne- 
gotiation had  ended — perhaps  it  had  been  agreed  upon  previously,  in  ac- 
cordance with  the  fixed  design  of  the  Old-school  party,  though  it  is  pro- 
bable the  precise  manner  of  arriving  at  the  desired  result  was  not  planned 
until  a  subsequent  period — the  next  thing  was  to  get  rid,  in  some  way,  of 
a  sufficient  number  of  the  New-school,  to  leave  them  in  a  poor  and  mise- 
rable minority.  If  any  fault  had  been  found  with  their  doctrine;  if  they 
had  at  all  offended  in  point  of  discipline,  a  constitutional  course  of  pro- 
ceeding was  open  to  the  other  party  for  their  trial  and  expulsion.  That 
course  for  some  reason  or  other  they  did  not  pursue.  Possibly  because 
they  found  it  would  be  difficult  to  prove  any  particular  fact;  or  that  a  ju- 
dicial investigation  would  be  very  troublesome;  or  because  they  were  too 
polite.     In  truth  they  cared  not  for  a  reason;  an  excuse,  on  such  an  oc- 


246  PRESBYTERIAN  CHURCH  CASE, 

casion,  they  thought  quite  suflficient.     By  a  very  small  majority  the  fol- 
lowing resolution  was  passed:  . 

"  But  as  the '  Plan  of  Union '  adopted  for  the  new  settlements  in  1801, 
was  originally  an  unconstitutional  act  of  that  Assembly — these  important 
rules  having  never  been  submitted  to  the  Presbyteries — and  as  they  were 
totally  destitute  of  authority  as  proceeding  from  thq  General  Association 
of  Connecticut,  which  is  invested  with  no  power  to  legislate  in  such 
cases,  and  especially  to  enact  laws  to  regulate  churches  not  within  her 
limits;  and  as  much  confusion  and  irregularity  have  arisen  from  this  un- 
natural and  unconstitutional  system  of  union,"  therefore,  it  is  resolved, 
that  the  act  of  the  Assembly  of  1  SOI,  entitled  a  <  Plan  of  Union,'  be,  and 
the  same  is  hereby  abrogated." 

Now  I  have  said,  that  this  seems  to  me  merely  a  part  of  a  mode  devised 
to  carry  out  a  predetermined  purpose.  First,  in  1835,  the  Assembly  had 
come  to  the  conclusion,  that  it  was  best  to  take  no  farther  order  upon  this 
subject.  Secondly,  in  this  resolution,  they  characterize  the  "  Plan  of 
Union"  as  unconstitutional.  Now  I  defy  them  to  show  a  single  provision 
of  it,  which  can  be  made  to  appear  so  to  any  but  the  jaundiced  eye  of  pre- 
judice. In  the  third  place,  if  in  casting  their  eyes  about  in  search  of  an 
expedient,  they  could  have  discovered  any  other  scheme  equally  plausi- 
ble, they  would  not  boldly  and  roundly  have  pronounced  an  act  per- 
formed by  the  venerable  fathers  of  their  Church,  "  unnatural  and  uncon- 
stitutional." 

Was  the  plan  unconstitutional?  If  so,  for  what  reason?  Because  it  was 
not  within  the  powers  of  the  General  Assembly?  The  Constitution  pro- 
vides that  no  rules  shall  be  obligatory  upon  the  churches,  unless  they  are 
first  sent  down  to  the  Presbyteries,  and  approved  by  a  majority  of  them. 
Was  this  a  rule  obligatory  on  the  churches,  or  was  it  a  constitutional  rule 
at  all?  It  imposed  no  obligation  upon  any  church  in  the  whole  United 
States.  You  belong  to  a  Presbytery,  being  entitled  to  a  seat  therein  as  a 
minister:  now,  by  that  Plan,  you  may  preach  to  a  Congregational  church, 
and  discipline  being  relaxed  in  this  respect,  it  will  be  considered  as  a  mere 
venial  offence,  and  you  shall  not  be  prosecuted  for  it.  Was  the  plan 
unconstitutional?  Why,  it  did  not  touch  the  Constitution.  It  had  a 
merely  personal  operation  on  individuals.  No  church  or  no  Presbytery 
was  affected.  And  even  if  it  was  a  constitutional  rule,  such  as  should 
have  been  sent  down  to  the  Presbyteries,  the  want  of  their  direct  appro- 
val had  been  supplied  by  their  tacit  acquiescence  for  near  forty  years. 
After  such  a  lapse  of  time,  an  act  of  Assembly,  an  act  of  Parliament,  or 
a  grant  from  the  crown,  will  be  presumed,  in  order  to  support  acquired 
rights.  These  very  Presbyteries  too,  formed  a  new  constitution  in  1821; 
but  did  not  repeal,  or  at  all  affect  the  "  Plan  of  Union."  By  the  adoption 
of  the  new  constitution  the  old  was  at  an  end;  and  on  this  new  or  amended 
one  all  the  Presbyteries  voted.  Yet  now  twenty  years  afterwards,  some 
of  these  Presbyteries  are  told,  that  because  they  came  in  under  the  "Plan," 
though  I  denjT^  that  any  did  or  could  so  come  in,  by  its  abrogation,  they 
are  cast  out.  They  ste[)ped  lightly  over  this  act  in  forming  the  new  con- 
stitution; they  did  not  consider  it  a  material,  a  vital  point.  The  law  is 
plain:  a  regulation  of  church  discipline,  if  not  essential,  may  be  acqui- 
esced in  by  the  Presbyteries.  But  this  was  not  even  a  rule  of  discipline; 
merely  a  plan  for  the  promotion  of  peace  and  harmony.     I  say,  however. 


MR.  MEREDITH'S  ARGUMENT.  247 

that  if  it  had  been  a  constitutional  rule,  the  acquiescence  of  the  Presbyte- 
ries was  equivalent  to  their  approval,  and  must  be  presumed,  first,  from 
the  length  of  time  that  had  elapsed;  and  secondly,  from  the  fact  of  their 
having  in  the  mean,  time  formed  a  new  constitution  without  disturbing 
the  "  Plan."  In  the  first  place,  that  is  a  necessary  member  of  a  body  who 
participates  in  the  formation  of  its  constitution:  so  all  of  the  thirteen  ori- 
ginal States  were  necessarily  members  of  our  confederation,  no  matter 
what  differences  there  existed  among  them,  while  they  were  colonies. 
Secondly,  a  new  constitution  being  formed  pending  the  operation  of  this 
act  of  union,  its  formation  was  a  clear  acquiescence  in  that  act,  or  was 
tantamount  to  an  acquiescence.  If  you  pass  a  divorce  bill,  if  you  pass  an 
insolvent  law,  if  you  pass  a  bankrupt  law,  the  custom  before  its  passage 
jnust  always  be  considered  in  the  interpretation  of  the  act,  according  to  the 
doctrines  of  cotemporaneous  construction. 

I  next  call  your  attention  to  what  alone  is  material  in  this  case — the  act 
immediately  succeeding  the  final  report  of  the  committee  appointed  to 
agree  on  terms  of  separation.  The  moment  that  my  clients  had  declared, 
that  they  would  never  consent  to  record  themselves,  without  any  reason 
at  all,  a  secession  from  the  true  Church,  this  measure  was  proposed. 
They  desired  no  separation;  they  held  the  doctrines  of  Presbyterianism 
in  all  their  purity;  they  found  nothing  in  the  standard  with  which  they 
did  not  agree. 

"  Resolved,  That  by  the  operation  of  the  abrogation  of  the  "  Plan  of 
Union  of  1801,  the  Synod  of  the  Western  Reserve  is,  and  is  hereby 
declared  to  be  no  longer  a  part  of  the  Presbyterian  Church  in  the  United 
States  of  America." — Min.  \S31,p.  440.  Ante, p.  44. 

There  the  matter  rested,  and  a  few  other  votes  were  taken,  by  which 
the  Old-school  found  that  their  action  had  not  been  so  decided  as  was 
requisite,  for  the  accomplishment  of  their  object.  Besides,  their  first 
resolution  had  not  been  quite  syllogistic  in  its  form;  they  had  not  given 
it  sufficient  logical  force;  and  some  persons  might  not  have  seen  the  exact 
connexion  between  the  premise  and  conclusion.  When,  therefore,  they 
make  the  next  cut,  something  like  a  reason  is  given. 

"  Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church 
in  the  United  States  of  America, 

"  1.  That  in  consequence  of  the  abrogation  of  the  "  Plan  of  Union"  of 
1801,  between  it  and  the  General  Association  of  Connecticut,  as  utterly 
unconstitutional,  and  therefore  null  and  void  from  the  beginning;  the 
Synods  of  Utica,  Geneva,  and  Genesee,  which  were  formed  and  attached 
to  the  body  under  and  in  execution  of  said  "  Plan  of  Union,"  be,  and  are 
hereby  declared  to  be  out  of  the  ecclesiastical  connexion  of  the  Presbyte- 
rian Church  of  the  United  States  of  America,  and  that  they  are  not  in 
form  or  in  fact,  an  integral  portion  of  said  Church." 

You  see  that  they  here  change  the  phrase:  it  is  not  "5^  the  opera- 
tion of  the  abrogation^''  but  "m  consequence  of  the  ahrogation.^^ 
This  is  followed  up  by  certain  other  resolutions. 

"  The  second,  third,  and  fourth  resolutions  were  then  adopted,  by  yeas 
and  nays,  as  follows,  viz. 

"  2.  That  the  solicitude  of  this  Assembly  on  the  whole  subject,  and  its 
urgency  for  the  immediate  decision  of  it,  are  greatly  increased  by  reason 
of  the  gross  disorders  which  are  ascertained  to  have  prevailed  in  those 


248  PRESBYTERIAN  CHURCH  CASE. 

Synods,  (as  well  as  that  of  the  Western  Reserve,  against  which  a  declara- 
tive resolution,  similar  to  the  first  of  these,  has  been  past  during;  our  pre- 
sent sessions,)  it  being  made  blear  to  us,  that  even  the  "Plan  of  Union" 
itself  was  never  consistently  carried  into  effect  by  those  professing  to  act 
under  it. 

"  3.  That  the  General  Assembly  has  no  intention,  by  these  resolutions, 
or  by  that  passed  in  the  case  of  the  Synod  of  the  Western  Reserve,  to 
affect  in  any  way  the  ministerial  standing  of  any  members  of  either  of 
said  Synods;  nor  to  disturb  the  pastoral  relation  in  any  church;  nor  to 
interfere  with  the  duties  or  relations  of  private  Christians  in  their  respec- 
tive congregations;  but  only  to  declare  and  determine  according  to  the 
truth  and  necessity  of  the  case,  and  by  virtue  of  the  full  authority  existing 
in  it  for  that  purpose,  the  relation  of  all  said  Synods,  and  all  their  con- 
stituent parts  to  this  body,  and  to  the  Presbyterian  Church  in  the  United 
States." 

That  is,  that  they  have  no  relation  at  all  to  the  Presbyterian  Church  in 
the  United  States,  and  never  have  had  any. 

^'  4.  That  inasmuch  as  there  are  reported  to  be  several  churches  and 
ministers,  if  not  one  or  two  Presbyteries,  now  in  connexion  with  one  or 
more  of  said  Synods,  which  are  strictly  Presbyterian  in  doctrine  and  or- 
der, be  it,  therefore,  further  resolved,  that  all  such  churches  and  ministers 
as  wish  to  unite  with  us,  are  hereby  directed  to  apply  for  admission  into 
those  Presbyteries  belonging  to  our  connexion  which  are  most  convenient 
to  their  respective  locations;  and  that  any  such  Presbytery  as  aforesaid, 
being  strictly  Presbyterian  in  doctrine  and  order,  and  now  in  connexion 
with  either  of  said  Synods,  as  may  desire  to  unite  with  us,  are  hereby 
directed  to  make  application,  with  a  full  statement  of  their  cases,  to  the 
next  General  Assembly,  which  will  take  proper  order  thereon." 

Now,  in  the  first  place,  I  beg  leave  to  deny,  that  these  Synods,  or  any 
other  Synods  can,  by  all  the  ingenuity  of  man,  be  made  to  appear  to  have 
come  in  under,  or  in  execution  of  that  "  Plan  of  Union",  because  no  such 
thing  is  provided  for  in  the  plan.  There  may  have  been  other  acts  that 
admitted  Congregationalists  into  the  Church,  perhaps  into  the  Synod  of 
Albany,  and  there  may  have  been  irregularities  as  to  some  of  the  Presby- 
teries; but  that  the  act  of  1801  had  the  capacity  to  admit  a  single  indivi- 
dual not  a  Presbyterian,  we  utterly  deny:  there  is  not  a  shadow  of  proof 
that  it  had.  But,  next,  suppose  the  fact  proved;  suppose  that  the  "Plan" 
did  admit  Congregational  churches,  and  that  these  sent  delegates  to  sit 
and  vote  in  the  General  Assembly;  where  is  the  evidence  that  the  four 
Synods,  or  a  single  one  of  them,  was  formed  in  any  other  way  than  as  all 
the  rest  of  the  Synods  were.  We  have  here  Synod  after  Synod  constitu- 
ted in  the  ordinary  mode,  according  to  the  lailes  of  the  Church,  of  minis- 
ters and  elders  regularly  ordained.  ISow  what  right  had  these  gentlemen 
to  lay  their  hands  on  one  part  of  the  Church,  and  undertake  to  cut  it  off,  and 
to  declare,  that,  by  the  operation  of  a  previous  act,  that  part  was  to  be  con- 
sidered as  never  having  iDelonged  to  the  Church?  If  that  act  were  repeal- 
ed, whether  in  1835,  or  1837,  the  legitimate  consequence  of  the  repeal 
was  not  that  because  a  part  of  the  members  of  the  Assembly  chose  to  vote 
as  they  pleased,  therefore  they,  and  the  Presbyteries  which  they  repre- 
sented were  out  of  the  Church;  but  that  if  they  persisted  in  dealing  with 
Congregationalists,  they  would  come  under  ecclesiastical  censure;  that  if  a 


MR.  MEREDITH'S  ARGUMENT.  349 

Presbyterian  minister  still  preached  to  a  Conp;regational  flock  he  would 
be  subjected  to  trial,  and  still  refusing  to  submit  to  the  laws  of  the  Church, 
to  expulsion.  But  instead  of  this,  by  an  act  proposed  and  determined  on 
by  the  juvenile  patriarchs,  before  coming  to  the  Assembly,  into  which 
they  introduce  a  few  harsh  words — "  unconstitutional,"  "unnatural" — 
they  abrogate  the  "Plan  of  Union;"  a  plan  which  never  admitted  any 
body  into  the  Church,  or  if  it  has,  never  admitted  us;  for  the  records  of 
the  formation  of  these  four  Synods  do  not  differ  from  those  in  regard  to 
the  formation  of  all  the  others;  and  then  pass  a  mere  declarative  resolu- 
tion— not  a  judgment,  not  a  trial,  not  a  legislative  act,  but  a  mere  declara- 
tive resolution,  that  these  Synods,  in  consequence  of  the  precedent  abro- 
gation, never  had  been  a  part  of  the  Presbyterian  Church;  that  the 
ministers,  elders  and  communicants  within  their  bounds  never  had  been 
church  members.  I  beg  leave  to  say,  gentlemen,  looking  upon  these 
people  as  a  body  of  electors,  on  their  having  come  into  the  Church  in  the 
regular  and  ordinary  method;  as  the  record  itself  shows,  no  reference  being 
made  to  the  act  of  ISOl,  and  their  having  been  acknowledged  as  Presby- 
terians for  years  before,  that  this  mode  of  exclusion — I  will  not  call  it 
legerdemain;  I  will  not  call  it  a  manoeuvre — but  I  say  that  it  was  an  un- 
lawful mode;  one  which  no  court  of  justice  can  sustain.  All  the  prescri- 
bed forms  of  trial  were  here  disregarded.  They  are  simply  told,  "  You 
are  out  of  the  Church;  it  was  all  a  mistake  to  suppose  that  you  ever  be- 
longed to  it;"  and  it  is  resolved  that  they  never  have  been  a  part  of  it. 
Farther  they  are  told  by  these  very  men  who  have  excluded  them, 
"  This  is  no  excision,  no  exclusion.  The  proceeding  is  not  a  judicial 
one:  we  accuse  you  of  no  crime:  you  are  guilty  of  none:  we  say  only 
that  you  are  Turks.  This  is  not  a  legislative  act;  not  a  bill  of  attainder: 
it  is  merely  a  declarative  resolution.  We  didn't  put  you  out  of  the 
Church:  you  were  out  already."  They  did  not  consider  any  body  put 
out,  though  in  terms  excluded.  The  first  of  the  exscinding  acts  runs 
thus: 

^^  Resolved,  That  by  the  operation  of  the  abrogation  of  the  Plan  of 
Union  of  ISO  1,  the  Synod  of  the  Western  Reserve,  is,  and  is  hereby  de- 
clared to  be  no  longer  a  part  of  the  Presbyterian  Church  in  the  United 
States  of  America." 

They  had  not  yet  gone  the  length  to  which  they  afterwards  ventured; 
nor  had  they  seen  the  logical  deduction  subsequently  discovered.  They  say 
the  Synod  of  the  Western  Reserve  is  no  lon.f^er  a  part  of  the  Church. 
This  looks  something  like  putting  it  out.  But  when  they  come  to  the 
next  resolution,  they  change  their  tone,  and  propound  the  sentence  thus: 

"That  in  consequence  of  the  abrogation  by  this  Assembly,  of  the  Plan 
of  Union  of  1801,  between  it  and  the  General  Association  of  Connecticut, 
as  utterly  unconstitutional,  and  therefore  null  and  void  from  the  begin- 
ning, the  Synods  of  Utica,  Geneva,  and  Genesee,  which  were  formed  and 
attached  to  this  body  under  and  in  execution  of  said  "Plan  of  Union,"  be, 
and  are  hereby  declared  to  be  out  of  the  ecclesiastical  connexion  of  the 
Presbyterian  Church  of  the  United  States  of  America,  and  that  they  are 
not  in  form  or  in  fact  an  integral  portion  of  said  Church." 

Not  these  Synods  are  no  longer  a  part  of  the  Church;  not,  on  the  abro- 
gation of  the  plan,  they  were  ijjse  facto  out  of  the  Church;  but  they  were 
never  in.     Then  they  go  on  to  say,  "We  make  no  charge:  we  wish  to  be 

.32 


250  PRESBYTERIAN  CHURCH  CASE. 

civil,  gentlemen,  and  hope  that  you  will  take  no  offence;  but  would  mere- 
ly make  a  general  reflection;  ."That  the  solicitude  of  this  Assembly  on 
the  whole  subject,  and  its  urgency  for  the  immediate  decision  of  it,  are 
greatly  increased  hy  reason  of  the  gross  disorders  luhich  are  ascertained 
to  have  prevailed  in  those  Synods,  as  well  as  that  of  the  Western  Reserve, 
&c."  Then  comes  the  clause,  under  their  construction  of  which,  the  coun- 
sel on  the  other  side  at  length  avow  that  these  men  were  never  put  out  at 
all.  "  That  the  General  Assembly  has  no  intention,  by  these  resolutions, 
or  by  that  passed  in  the  case  of  the  Synod  of  the  Western  Reserve"— ^now 
observe  the  words — "  to  affect  in  any  way,  the  ministerial  standing  of  any 
members  of  either  of  said  Synods."  Not  affect  their  ministerial  stand- 
ing! No,  they  are  simply  told,  first,  that  they  came  in  under  an  uncon- 
stitutional and  unnatural  plan,  and  that  they  never  were  members  of  the 
Church;  and,  secondly  that  they  have  been  guilty  of  gross  disorder.  I 
do  not  know  what  was  left  for  our  inference  from  all  this;  but  we  are  as- 
sured that  it  did  not  affect  the  ministerial  standing  of  any  body !  "  You  are 
all  good,  moral  men,  and  if  you  will  repent  of  your  sins,  and  come  back,, 
we  will  treat  you  as  we  treat  all  ministers  coming  from  other  denomina- 
tions— we  will  not  require  your  re-ordination." 

"Nor  to  disturb  the  pastoral  relation  in  any  Church:" — Certainly  not; 
for  the  pastors  and  their  flocks  were  all  on  a  footing — all  turned  out  to- 
gether. What  a  mockery!  After  having  cut  off  from  the  Church,  fifty 
thousand  communicants,  with  their  churches  and  pastors  and  ecclesiasti- 
cal organization,  at  one  sweep  of  the  battle  axe,  to  say,  "  We  have  no  in- 
tention to  disturb  the  pastoral  relation  among  you.  You  are  very  good 
Turks,  and  may  do  well  enough  at  Constantinople."  "  Nor  to  interfere 
with  the  duties  or  relations  of  private  Christians  in  their  respective  con- 
gregations:"— No,  thank  God,  that  was  beyond  the  power  of  the  General 
Assembly.  They,  forsooth,  do  not  mean  to  interfere  with  the  private 
duties  and  relations  of  Christians — they  might  do  so,  in  welcome,  if  they 
could!  "  But  only  to  declare  and  determine  according  to  the  truth  and 
necessity  of  the  case,  and  by  virtue  of  the  full  authority  existing  in  it  for 
that  purpose,  the  relation  of  all  said  Synods,  and  all  their  constituent  parts 
to  this  body,  and  to  the  Presbyterian  Church  in  the  United  States." 

These  Synods  are  declared  not  to  be  constituent  parts  of  the  General 
Assembly.  But  the  Presbyteries  are  but  the  constituent  parts  of  the  Sy- 
nods, the  churches  of  the  Presbyteries,  the  ministers,  elders,  and  private 
members,  of  the  churches.  All  these,  therefore,  are  declared  out  of  its 
connexion,  and  it  is  asserted  that  they  never  did  belong  to  it.  They  go 
on — I  will  not  say  that  they  add  insult  to  injury:  I  will  not  say  that  they 
use  a  single  harsh  expression — of  this  you  must  judge,  they  go  on,  after 
having  excluded  these  Presbyteries,  and  charged  them  with  gross  irregu- 
larity and  disorder,  to  say, 

"That  inasmuch  as  there  are  reported  to  be  several  churches  and 
ministers,  if  not  one  or  two  Presbyteries" — they  had  not  taken  any 
pains  to  discover  whether  there  were  any  such,  before  excluding  them — 
**  which  are  strictly  Presbyterian  in  doctrine  and  order" — there  you  have 
it:  these  men  were  expelled  because  they  were  not  "strictly  Presbyterian- 
in  doctrine  and  order" — "  be  it,  therefore,  further  resolved,  that  all  such 
churches  and  ministers  as  wish  to  unite  with  us,  are  hereby  directed  to 
apply  for  admission  to  those  Presbyteries  belonging  to  our  connexion. 


MR.  MEREDITH'S  ARGUMENT.  251 

-which  are  most  convenient  to  their  respective  locations;" — that  is,  all 
those  of  you  who  wish  to  become  Presbyterians,  may  come  and  ask  for 
admission,  just  as  converted  heathen,  as  Jews  and  Turks  may;  as  Con- 
gregationalists  or  Episcopalians  you  may  come  and  apply — "  and  that 
any  such  Presbytery  as  aforesaid,  being  strictly  Presbyterian  in  doc- 
trine and  order,  and  now  in  connexion  with  either  of  said  Synods,  as 
may  desire  to  unite  with  us,  are  hereby  directed  to  make  application,  with 
a  full  statement  of  their  cases,  to  the  next  General  Assembly,  which  will 
take  proper  order  thereon."  And  they  are  to  apply  for  admission,  with 
,the  prospect  of  the  like  consequences  as  before:  that  when  they  shall 
have  been  admitted,  when  they  shall  have  again  passed  forty  years  in  the 
communion  of  the  Church,  when  they  shall  have  again  contributed  their 
money  to  its  funds,  and  their  prayers  to  its  spiritual  treasury,  they  may 
again  be  ejected,  because  of  their  alleged  admission  under  this  same  "  Plan 
of  Union"  of  1801,  that  being  first  repealed  or  abrogated.  Yet  now  the 
gentlemen  on  the  other  side,  are  driven  to  the  point  of  asserting,  that 
there  has  been  no  exclusion.  Our  learned  friends  see  the  necessity  of 
this  ground  to  their  case,  viewing  it  as  lawyers,  though  my  reverend 
friends  do  not.  I  say  they  find  themselves  driven  in  point  of  law,  to 
maintain  that  the  four  Synods  were  never  exscinded,  because  they  were 
told,  that  if  they  repented  they  might  be  re-admitted  to  the  Church.  But 
it  must  be  obvious,  even  to  gentlemen  of  far  less  sagacity  than  our  learned 
friends,  that  this  latter  position  is  totally  untenable.  No  man  can  read 
those  exscinding  resolutions,  and  the  subsequent  proceedings  of  the  As- 
sembly, by  which  the  commissioners  from  the  four  Synods,  then  in  the 
house,  were  put  out,  and  believe  that  these  gentlemen  were  never  ex- 
cluded at  all — if  indeed  the  act  could  put  them  out,  which  I  deny,  agree- 
ing with  our  opponents  in  the  fact,  that  none  v/ere  excluded  by  those 
acts;  not  supposing,  however,  that  the  Assembly  did  not  intend  to  ex- 
clude them,  but  that  they  had  not  the  power  to  do  so. 

Sensible  that  this  extraordinary  position  could  not  be  long  maintained, 
our  learned  friends  have  advanced  another  still  more  extraordmary:  that 
though  the  General  Assembly  has  now  been  sitting  yearly,  since  1801, 
there  never  has  been  a  constitutional  Assembly  since  that  time,  until  the 
sort  of  body,  which  they  call  a  General  Assembly — I  shall  not  bestow 
any  epithet  upon  it — met  for  the  glory  of  God  in  the  church  in  Ranstead 
Court.  This  is  a  justification  to  be  sure!  These  Synods  cannot  be  consti- 
tuent parts  of  the  Church,  because  the  Assemblies  that  formed  them  were 
not  true  and  constitutional  Assemblies!  Then  who  can  claim  to  be  true- 
blue  Presbyterians? 

This  position  was  taken  early  in  the  case,  and  therefore  we  have  had 
an  opportunity  of  applying  our  minds  to  it  carefully.  It  seems  that  it  is 
all  a  mistake;  we  are  none  of  us  Presbyterians.  There  have  been  no  such 
things  as  moderators  or  clerks,  or  members  of  the  Assembly.  There  has 
been  no  Assembly  at  all,  and,  of  consequence,  no  Church;  for  the  General 
Assembly  is  essential  to  the  existence  of  the  Presbyterian  Church.  I 
shall  not  stop  to  argue  this  matter,  except  as  to  one  point.  All  of  the 
defendants  in  this  suit,  with  the  single  exception  of  Dr.  Green,  who  was 
appointed  by  the  legislature,  were  elected  by  the  General  Assembly;  and, 
by  Assemblies  which  fall  under  my  learned  friends'  sweeping  condem- 
nation.    Now  this  is  proceeding  upon  a  quo  warranto,  and  of  course  the 


252  PRESBYTERIAN  CHURCH  CASE. 

question  concerns  merely  the  title  of  the  defendants.  Then  all  we  would 
have  to  do,  would  be  to  make  a  slight  alteration  in  the  pleadings,  which 
might  be  done  here  at  the  bar,  in  five  minutes,  and  the  issue  would  thus 
be  brought  to  the  point  suggested  by  my  friend,  and  his  clients  must  be 
ousted. 

Mr.  Preston.     Will  you  agree  to  do  so,  Meredith  ? 

Mr.  Meredith.  Oh  no;  we  won't  quarrel  about  that.  But  I  am  now 
going  to  show  that  Dr.  Green  must,  in  that  event,  go  too;  because  we 
could  not  be  so  unjust  and  unfeeling,  as  to  leave  him  alone  in  his  old  age, 
to  stagnate  in  the  midst  of  his  own  corporate  acts.  We  could  not  consent 
to  leave  him  the  sole  corporator,  with  no  power  to  elect  other  trustees,  or 
keep  up  the  succession — the  single  survivor  of  this  Tontine.  That 
undoubtedly  would  conduce  to  harmony  and  peace:  there  could  be  no 
such  thing  as  the  removal  of  a  moderator,  or  of  clerks;  or  as  what  our 
opponents  charge  us  with  having  intended — a  separate  organization.  No 
doubt  the  reverend  gentleman  would  hail  with  pleasure  a  mandamus 
that  would  give  him  some  companions.  It  however  happens,  whether 
fortunately  or  unfortunately  I  do  not  pretend  to  say,  that  if  we  made  this 
amendment,  and  the  assertion  of  my  learned  friends  be  cori'ect.  Dr.  Green 
must  fall  too.  The  assertion  rests  upon  the  supposition,  that  under  the 
''Plan  of  Union,"  Congregationalists  sat,  or  were  represented,  in  the 
General  Assembly.  Our  opponents  say,  that  as  the  act  of  incorporation 
contemplated  none  but  Presbyterians,  if  a  Congregationalist  has  sat,  or 
been  represented  in  any  body  claiming  to  be  an  Assembly,  it  was  no 
Assembly.  Well,  we  show,  that  in  1794,  delegates  from  the  General 
Association  of  Connecticut  were  allowed  to  sit  and  vote,  and  this  with  the 
sanction  of  Dr.  Green  himself.  Jlssem.  Dig.  pp.  295,296.  The  Assem- 
bly gave  a  right  of  voting  to  Congregationalists  sitting  under  the  Act  of 
1792.  If  then  a  single  Congregationalist  exercised  that  right,  the  whole 
Assembly  was  vitiated:  a  single  rat  in  the  cellar  renders  the  whole  dwel- 
ling untenable.  So  Dr.  Green's  appointment  as  trustee,  by  the  Act  of 
Assembly,  was  all  a  mistake.  There  was  no  Presbyterian  Assembly  then 
in  existence,  whose  trustees  could  be  incorporated  by  the  Legislature. 
The  result,  then,  of  this  argument  of  our  opponents,  if  it  prevails,  must  be 
to  show  that  the  whole  of  these  trustees,  as  there  was  no  Presbyterian 
Church  in  being,  at  the  time  they  were  incorporated,  were  appointed  by 
a  mistake,  a  mere  legislative  blunder;  and  that  all  the  property  confided 
by  benevolent  persons  to  this  Church,  to  be  distributed  in  charity,  must 
revert  to  the  donors.  How  far  such  a  notion  may  have  alarmed  the 
Associate  Reformed  Church,  and  induced  its  members  to  institute  the 
legal  proceedings  lately  resulting  in  the  restoration  of  their  old  library, 
given  at  the  time  of  the  union  of  1821  to  the  Seminary  at  Princeton,  I 
cannot  pretend  to  conjecture.  We  certainly  desire  nothing  better  than 
that  this  position  taken  by  our  learned  friends  should  be  established.  I 
shall  not  stop  therefore  to  argue  that  the  rules  of  any  Assembly  are  suffi- 
cient for  itself,  and  if  found  not  to  be  in  accordance  with  its  charter  of 
incorporation,  still  its  acts  are  valid,  until  they  arc  regularly  annulled.  I 
dwell  on  no  such  strict  points  of  law.  If  tlie  assertion  of  the  opposite 
counsel  be  true,  the  expulsion  of  their  clients  is  even  more  certain,  than 

I  made  by  the  establishment  of  our  positions. 

fext,  we  come  to  tlie  declaration  of  my  learned  friend,  that  we  have 


MR  MEREDITH'S  ARGUMENT.  353 

■ourselves  acknowledged  the  validity  of  the  acts  of  excision,  by  formally 
determining  in  183S,  that  there  were  no  vacancies  in  the  Board  of  Trus- 
tees, For,  says  he,  one  or  two  persons  were  appointed  to  that  office  in 
1837,  after  the  passage  of  those  acts.  Of  course,  then,  you  cannot  now 
aver,  that  by  them  the  Assembly  dismembered  and  destroyed  itself.  But, 
in  the  first  place,  it  by  no  means  follows,  from  any  part  of  the  evidence 
given,  nor  will  the  law  presume,  that  we  knew  of  the  fact  of  the  subse- 
quent appointment  of  these  trustees.  It  was  not  our  duty  to  read  things 
so  disagreeable,  as  the  Minutes  of  1S37  may  naturally  be  supposed  to 
,  have  been  to  us,  after  we  had  been  so  politely  shown  to  the  door.  Se- 
condly, we  have  not  thought  fit  to  make  more  trouble  than  was  absolutely 
necessary  to  the  attainment  of  all  proper  legal  advantages.  This,  which 
we  have  chosen,  is  a  better  mode.  With  pleasure  we  refer  to  our  Mi- 
nutes as  containing  no  such  unnecessary  charges  as  those  found  in  the 
resolutions  of  the  Old-school.  We  desire  to  end  this  controversy,  with- 
out any  violation  of  the  law  of  charity;  and  have  applied  gratuitously  no 
reproachful  epithets.  The  minute  speaks  of  no  "  gross  disorders,"  with- 
out any  specification,  of  no  "unconstitutional  and  unnatural"  acts.  Per- 
haps too,  we  might  have  been  mistaken  in  point  of  fact:  perhaps  there 
was  no  election  in  1837.  We  only  acted  upon  the  best  information  we 
could  get:  it  was  fortunate,  indeed,  that  we  discovered  who  were  mem- 
bers of  the  Board  of  Trustees  at  all.  Every  thing  done  in  the  Assembly 
of  1837  was  not  put  upon  the  printed  minutes. 

(Here  the  jury  were  allowed  a  recess  often  minutes.) 
It  is  contended,  gentlemen,  on  the  other  side,  that  admitting  the  acts  of 
excision  to  have  been  unlawful,  the  legitimate  consequence  must  have 
been  that  there  could  be  no  lawful  Assembly  in  1838 — the  unlawful  act 
must  have  caused  a  discontinuance.  But  such  a  conclusion  does  not  by 
any  means  necessarily  follow  from  the  premises.  The  Assembly  of  '37, 
even  after  the  passage  of  those  acts,  was  still  the  Assembly  de  facto,  so 
long  as  there  was  no  adverse  claim.  It  must  be  obvious  from  a  mere 
glance  at  the  authorities — it  cannot  at  this  day  be  matter  of  dispute — that 
even  an  omission  to  meet  at  all  would  not  work  a  discontinuance.  If  the 
Assembly  of  1837  had  adjourned  without  naming  a  day  of  meeting,  and 
simply  by  the  general  consent  of  the  Presbyteries,  decided  by  a  majority 
of  them,  a  day  had  been  afterwards  appointed,  the  Assembly  convened 
on  such  day  would  have  been  a  lawful  body. 

One  other  thing  I  wish  to  say  in  regard  to  the  Assembly  of  1837,  before 
I  leave  it  entirely.  The  members  of  that  Assembly,  or  at  least  a  majority 
of  them,  having  come  to  the  meeting  of  the  body  with  a  fixed  determina- 
tion to  exclude  a  portion  of  their  opponents^  and  perhaps  doubting  the 
validity  of  the  exscinding  resolutions,  after  they  had  been  passed,  as 
their  next  act — having  certainly  abjured  the  advice  of  all  "  counsel  learn- 
ed in  the  law,"  as  they  had  before  disregarded  the  law  itself,  they  felt 
that,  as  members  of  an  ecclesiastical  court,  they  had  got  rid  of  their  op- 
ponents by  a  species  of  legerdemain — I  don't  use  this  as  a  term  of  re- 
proach— that  they  had  turned  them  out  of  doors  without  just  cause,  and 
without  trial,  or  notice — they  felt  this  so  forcibly,  and  were  so  doubtful, 
whether  their  resolutions  would  be  carried  into  effect,  even  by  their  own 
officers,  that  their  next  act  was  to  exact  a  pledge  from  the  clerks  of  1837, 
that  they  would  enforae  those  resolutions  in  the  formation  of  the  Assem- 


254  PRESBYTERIAN  CHURCH  CASE. 

bly  of  1S3S.  And  it  so  happened,  though  I  will  not  suppose  it  was  so  in- 
tended— that  it  was  meant  as  an  injury  to  the  fifty  thousand  victims  of 
the  exscinding  acts — it  happened,  that,  as  the  previous  purpose  of  the 
Old-school  had  been  kept  hid,  so  the  subsequent  pledge  was  not  made 
known,  until  the  next  meeting  of  the  Assembly.  I  do  not  charge  this 
as  a  breach  of  duty;  but  state  merely  as  a  fact,  that  the  minute  of  the 
proceedings  connected  with  this  pledge  of  the  clerks,  was  not  printed, 
was  not  published  to  the  world.  It  is  said  that  this  was  an  error  of  the 
Committee  of  Publication.  I  agree.  That  it  was  not  an  intentional 
wrong.  I  agree.  That  a  New-school  man  was  a  member  of  the  commit- 
tee. Agreed.  If  he  did  not  publish  an  account  of  its  proceedings,  he  may 
perhaps  have  communicated  his  personal  knowledge  to  some  few  in  con- 
versation. But  there  is,  nevertheless,  the  fact,  that  the  minute  was  not 
printed,  and  that  therefore,  not  only  the  origin,  but  also  the  consummation 
of  the  act  of  excision  was  not  disclosed. 

Then,  before  we  leave  the  proceedings  of  1S37,  let  us  look  at  their  cha- 
racter in  point  of  fact,  as  to  the  sort  of  selection  which  was  made  of  Sy- 
nods to  be  put  out  of  the  Church.  The  Synod  of  Albany  was  not  ex- 
cluded; and  here  is  a  list  of  the  churches  belonging  to  the  several  Presby- 
teries of  that  Synod — not  of  Congregational  churches;  for  this  statistical 
table  shows  that  no  such  church  has  been  admitted.  It  gives  the  name 
of  each  minister,  and  then  certain  memoranda,  which  by  their  manner 
of  entry  show  the  exact  construction  of  the  act  of  1801,  The  number  of 
pastors  is  reported,  and  the  number  of  churches.  The  Synod  of  Albany, 
you  will  recollect,  was  not  touched.  Well,  in  one  single  Presbytery  be- 
longing to  that  Synod — >the  Presbytery  of  Londonderry — you  have  re- 
ported eight  Presbyterian  ministers,  pastors  of  Congregational  churches, 
being  near  one-third  of  twenty-five,  the  whole  number  of  ministers; 
while  there  are  but  twelve  Presbyterian  churches,  in  the  same  district. 
Yet  all  these  ministers  are  good  Presbyterians.  Next  comes  the  Pi-esby- 
tery  of  Newburyport,  belonging  to  the  same  Synod.  Here  there  are  six- 
teen ministers  reported;  and  of  these,  also,  eight  are  pastors  of  Congrega- 
tional churches,  two  are  professors,  and  there  is  but  one  solitary  pastor  of 
a  Presbyterian  church — yes,  there  are  two.  This  Presbytery,  however, 
is  perfectly  sound  in  doctrine  and  discipline,  though  at  the  same  time  we 
hear  Congregationalists  denounced  as  little  better  than  Turks  and  Infidels. 
These  Presbyteries,  parhaps,  voted  on  the  right  side:  their  time  had  not 
yet  come:  they  were  still  strictly  Presbyterian. 

Now  let  us  turn  to  some  of  the  Presbyteries  exscinded.  Take  for  ex- 
ample the  Presbytery  of  Otsego — or  the  Presbytery  of  Oneida,  which  is 
larger.  This  Presbytery  has  forty-seven  ministers,  and  there  is  not  one 
pastor  of  a  Congregational  church  amongst  them — not  a  single  one.  The 
Presbytery  of  Otsego  has  nine  ministers,  and  to  this  the  same  remark  ap- 
plies as  that  made  in  regard  to  the  Presbytery  of  Oneida.  Take  the  Pres- 
bytery of  Geneva.  This  has  thirty-seven  ministers,  and  to  it  also  the 
same  remark  applies  from  beginning  to  end.  Several  ministers  are  re- 
ported as  without  charge,  and  several  as  being  what  are  called  "  stated  sup- 
plies" of  particular  churches.  This  was  the  Presbytery  which  Dr.  Elliott 
did  not  know.  Now  I  exhibit  these  statistics,  in  the  first  place,  to  show 
the  practical  operation  of  the  act  of  1801;  and,  secondly,  to  demonstrate 
as  a  fact,  or  as  an  inference  from  a  fact,  which  you  are  to  find  if  necessary; 


MR.  MEREDITH'S  ARGUMENT.  25& 

that  although  the  plan  of  1801,  and  the  cry  of  irregularity  and  disorder, 
were  made  the  excuse  for  the  exscinding  acts,  they  were  not,  in  point  of 
fact,  the  cause  of  the  excision,  since  other  Synods,  which,  as  you  have 
seen,  were  doubly  obnoxious  to  the  charges  made  against  the  four  that 
were  excluded,  were  not  touched.  The  cause  assigned  was  unreal:  the 
real  cause  was  that  which  has  been  opened  to  you  by  the  counsel  on  the 
other  side:  that  the  Old-school  party  came  to  that  Assembly  determined 
to  get  a  vote  satisfactory  to  themselves,  and,  if  necessary,  to  put  out  of 
doors  enough  to  secure  a  majority.  I  ask  you  to  find  that  this  was  the 
irue  cause.  The  jury  will  determine  whether  it  was  not  formally  opened 
to  them  by  the  opposite  counsel. 

Mr.  Hubbell.  You  have  mistaken  my  meaning  altogether. 
■  Mr:  Meredith.  I  should  be  glad  to  find  out  that  I  had.  Gentlemen, 
you  must  determine,  whether  it  was  or  was  not  formally  opened  to  you, 
that  the  Old-school  party  went  to  the  Assembly  of  1837  determined,  in 
the  first  place,  to  have  a  final  settlement  of  certain  questions  of  doctrine-, 
and,  secondly,  that  these  questions  should  be  decided  by  the  votes  of  none 
but  Presbyterians;  and  whether  this  determination  was  not  carried 
out  by  the  exclusion  of  these  gentlemen.  Now,  since  it  was  alleged  that 
they  were  not  Presbyterians;  and  since  the  questions  referred  to  were  set- 
tled agreeably  to  the  wishes  of  the  Old-school,  by  their  exclusion,  because 
they  would  not  agree  in  certain  views,  I  ask  you,  gentlemen,  to  say  that 
the  facts  are  as  I  have  stated.     You  must  decide  whether  I  am  correct. 

I  now  come  to  the  meeting  of  the  Assembly  of  1838;  and  this  is  the  vi- 
tal part  of  the  inquiry:  all  that  I  have  said,  hitherto,  has  been  but  pre- 
liminary to  it. 

Judge  Rogers.  This  is  a  good  resting  place.  We  had  better  adjourn 
till  Monday. 

Mr.  Meredith.  On  Monday  then,  gentlemen,  I  will  proceed.  I  am 
ashamed  of  having  occupied  your  attention  so  long,  but  shall  endeavour^ 
as  I  promised,  "  to  do  all  in  the  shortest  time  possible.'" 

MONDAY  MORNING,  March  18th.— 10  o'clock. 

May  it  please  your  Honour — Gentlemen  of  the  Jury: — On  Saturday 
I  endeavoured  to  show  the  invalidity  of  the  exscinding  acts  of  1837. 
That  the  General  Assembly,  while  it  had  the  power  to  admit  Presbyteries 
and  Synods,'*had  no  power  to  expel  them.  That,  therefore,  the  resolu- 
tions of  1837,  not  being  judicial  acts,  were  unlawful  as  regarded  the 
Assembly  of  that  year,  and  null  and  void  as  regarded  all  subsequent 
Assemblies.  That  the  assertion,  that  for  thirty  or  forty  years  there  has 
been  no  real  General  Assembly,  that  that  body  has  not  had  any  existence 
in  fact,  taken  in  its  only  real  sense,  condemns  the  defendants  according  to 
the  judgment  of  Solomon;  showing  that  when  they  find  that  they  cannot 
succeed,  they  are  willing  to  sacrifice  the  true  General  Assembly,  rather 
than  that  their  opponents  should  recover  their  rights.  That  as  to  the 
Assembly  of  1837,  the  acts  of  excision  were  unlawful,  and  as  to  all  subse- 
quent Assemblies,  they  had  no  semblance  of  existence.  That  it  was  as  if 
the  common  councils  of  the  city  should  cut  off  four  of  the  wards,  and 
turn  their  representatives  out  of  the  council  hall;  in  which  case  the  act 
would  be  absolutely  n«ll  and  void,  and  the  election  for  councils  in  those 


256  PRESBYTERIAN  CHURCH  CASE. 

wards  would  the  next  year  go  on  as  usual — as  if  the  excision  had  never 
taken  place.  Thus  we  stood  f?.t  the  commencement  of  the  session  of  the 
Assembl}^  in  1838,  to  which  body  two  distinct  parties  came  up.  On  one 
side  the  representatives  of  the  twenty-eight  Presbyteries  which  the  Old- 
school  had  pretended  to  exscind,  and  those  v/ho  sympathized  with  them, 
conscious  that  great  injustice  had  been  done  their  brethren:  on  the  other 
side  the  remnant  of  the  accidental  majority  of  1837,  who,  in  violation  of 
the  Constitution  and  laws  of  their  Church,  which  they  had  pledged  them- 
selves to  maintain,  had  rebelled  and  mutinied,  and  like  Sampson,  in 
blindness  as  well  as  strength,  were  endeavouring  to  shake  down  the  pil- 
lars of  the  temple.  The  latter  came  in  1838,  determined  to  carry  out  their 
rebellion.  They  were  resolved  to  destroy  every  thing  like  a  lawful 
organization  of  that  body,  and  with  an  ungoverned  license  to  place  the 
whole  Presbyterian  Church  at  the  mercy  of  a  mere  numerical  majority;- 
to  throw  off  all  legitimate  ecclesiastical  rule.  Thus  constituted,  that  body 
assembled,  and  we  find,  taking  into  consideration  the' conduct  of  the  two 
parties,  that  they  bore  the  same  marks  as  in  1S37,  and  came  with  widely 
different  spirits.  The  New-school  came  without  any  previous  combina- 
tion, and  assembled  in  a  meeting  for  consultation,  to  which,  by  public 
advertisement,  all  of  both  parties  had  been  invited,  to  devise  means  for 
the  fulfilment  of  their  legitimate  duties.  This  consultation  meeting  was 
openly  attended  by  members  of  the  Old-school — at  least  by  enough  of 
them  to  keep  a  watchful  eye  upon  the  proceedings,  and  communicate  all 
that  was  done  to  their  friends.  The  opposite  party,  those  setting  up  to 
exclude  a  large  portion  of  their  brethren,  came  with  plans  which  were  not 
communicated  to  the  other  side,  and  met  together  in  secret  conclave.  I 
don't  care  whether  the  fact  that  they  did  so  meet  is  in  evidence  or  not. 
Certainly  they  did  one  of  two  things;  they  either  held  a  secret  conclave, 
or  they  went  to  the  house  in  Ranstead  Court  and  took  their  seats  at  nine 
o'clock,  to  the  exclusion  of  all  those  who  differed  in  opinion  from  them- 
selves. These  are,  however,  but  introductory  matters,  on  which  I  am 
sorry  to  have  detained  you  so  long,  but  which  are  important  as  exhibiting 
the  spirit  of  the  two  parties. 

You  must  now  turn  your  attention  to  the  testimony  of  the  witnesses  in 
this  case,  from  which  you  are  to  find  facts  most  important  to  the  issue. 
Undoubtedly  the  witnesses  on  both  sides  are  gentlemen  of  great  respect- 
ability, and  though  their  evidence  is,  to  appearance,  contradictory,  after 
sifting  carefully  the  whole,  there  being  twenty  odd  witnesses  on  each  side, 
I  am  not  able  to  find  any  necessity  for  weighing  those  of  either  party  in 
the  scales  of  credibility.  On  the  main  facts  of  the  case  they  are  all  agreed. 
This  assertion  may  appear  strange  to  you;  but  I  pledge  myself  to  make 
you  see,  that,  notwsthstanding  the  apparent  discrepancy,  there  is  no  fact 
in  regard  to  which  it  will  be  necessary  for  you  to  judge  of  the  credibility 
of  a  single  witness. 

Our  case  is,  that  those  whom  we  represent  lawfully  organized  the 
General  Assembly  of  1838,  in  the  church  in  Ranstead  Court.  We  say 
that  the  officers  bequeathed  to  that  Assembly  by  its  predecessor,  the 
Assembly  of  1837,  decided  wrongfully  in  repeated  instances;  and  that 
this  misconduct — whether  it  was  wilful  or  not,  is  another  question,  one 
which  is  entirely  foreign  to  ihis  cause;  but  it  would  have  been  still  more 
unjust  if  wilful — was  a  sufficient  reason  for  their  removal.     That  after 


MR.  MEREDITH'S  ARGUMENT.  g57 

their  misconduct,  a  motion  was  made  in  a  lawful  manner,  that  they  should 
be  removed;  that  this  motion  was  lawfully  put  to  the  house  and  carried; 
and  that  thereby  these  officers  were  removed.  This  being  once  demon- 
strated, it  flows  frorts  it  directly  as  a  corollary,  that  the  Assembly,  which, 
under  the  new  officers,  by  whose  appointment  the  old  were  deposed,  held 
its  sessions  in  the  First  Presbyterian  Church,  was  the  true  General  Assem- 
bly, and  the  relators  were  duly  elected  trustees. 

Here,  at  the  outset,  we  meet  several  points  of  law.  Our  opponents 
contend  that  the  removal  of  these  officers  was  in  itself  illegal ;  that  the 
-time  of  removing  them  was  improper,  and  the  manner  irregular  and  dis- 
orderly. On  each  branch  of  their  argument  we  shall  dwell;  and  since 
they  are  not  satisfied  with  one  code  of  laws,  we  will  take  three — the  com- 
Inon  law,  the  regulations  and  usages  of  the  Assembly  itself,  even  if  they 
are  contrary  to  the  principles  of  the  common  law,  and  the  usages  of  par- 
liamentary order.  On  the  provisions  of  this  latter  code,  I  must  however 
speak  with  great  diffidence,  as  I  am  confronted  by  opponents  of  so  much 
more  parliamentary  experience  than  I  can  boast. 

I  say  tliat,  in  the  first  place,  we  allege  the  misconduct  of  the  officers  of 
the  Assembly.  The  clerks  were  mere  ministerial  officers,  and  not  neces- 
sarily members  of  the  body;  in  this  case  indeed,  they  were  not  in  fact 
members.  These  clerks  are,  by  usage — a  usage  growing,  in  the  first 
place,  out  of  a  regulation  of  the  Assembly,  and  harmless  in  itself — a 
Standing  Committee  of  Commissions.  In  this  capacity  they  sit,  before 
the  meeting  of  the  Assembly,  to  receive  the  commissions  of  the  members, 
to  decide  wliether  they  are  prima  facie  regular,  and  if  so,  to  enrol  the 
the  names  of  the  commissioners.  To  them,  the  commissioners  from  the 
four  exscinded  Synods,  as  they  are  called,  presented  their  commissions, 
which,  however,  they  refused  to  receive.  Now,  I  call  your  attention  to 
the  fact,  that  there  is  no  pretence  that  these  commissions,  or  any  of  them, 
were  defective  in  point  of  form;  but  the  commissioners  were  distinctly  told, 
that  the  Assembly  of  1837  had  put  the  Presbyteries  from  which  they  came, 
out  of  the  Church,  and  that  the  clerks  were  therefore  precluded  from  receiv- 
ing them.  Bear  in  mind,  that  from  the  first  step  of  the  clerks,  down  to 
the  last  act  of  the  Old-school  in  1838,  including  "The  Three  Acts,"  which 
have  been  mentioned  by  one  of  the  witnesses,  thei-e  was  at  no  period  any 
doubt  expressed  as  to  the  authenticity  of  these  commissions,  their  being 
regularly  signed  by  the  proper  officers,  or  their  being  in  every  respect  in 
the  ordinary  form.  This  point  will  be  very  material  in  the  remaining 
part  of  the  case.  The  difficulty  made  to  their  reception  by  the  officers 
did  not  arise  from  informality;  but  these  officers  had  entered  into  a  com- 
bination to  disregard  them  entirely,  though  perfectly  formal,  and  to 
exclude  them,  on  the  ground  that  they  did  not  come  from  a  proper  con- 
stituency. The  question  was  not  in  regard  to  their  authenticity,  but 
whether  by  some  nicety  in  proceedings  the  Assembly  had  not  the  power 
to  exclude  a  ])ortion  of  its  own  electors.  The  commissions  were  not  even 
examined,  to  see  whetlier  they  were  formal.  This  tlien  was  tl)e  question, 
and  of  the  acts  done  you  must  judge  by  reference  to  it.  These  commis- 
sions were  presented  to  the  clerks,  sitting  in  the  session-room  of  the 
church  on  purpose  to  receive  commissions,  and  the  matter  had  their  undi- 
vided attention:  they  even  locked  the  door,  that  their  minds  might  be 
unabstracted.     The  ctimmissioners  from  the  four  Synods,  requested  that 

33 


258  PRESBYTERIAN  CHURCH  CASE. 

their  names  should  be  put  upon  the  roll,  but  their  request  was  refused. 
The  committee  did  not  say  "  Your  commissions  are  not  authentic."  No; 
they  refused  them  for  a  defect  in  their  constituency.  They  were  acting 
under  the  proceedings  of  1837,  which  they  had  given  a  solemn  pledge  to 
sustain  and  carry  out  in  all  their  parts.  And  if  faith  be  pledged  even  to 
the  devil  the  pledge  must  be  redeemed.  It  is  plain  that  these  clerks  vio- 
lated their  duty  as  officers,  unless  they  stake  their  conduct  upon  the  lega- 
lity of  the  exscinding  resolutions  of  1837. 

Another  misconduct  of  one  of  the  clerks  led  to  all  the  subsequent  con- 
fusion and  disorder,  by  whomsoever  made.  If  is  the  duty  of  the  clerks, 
although  they  are  to  put  upon  the  roll  of  the  house  only  those  whose 
commissions  are  in  due  form  and  are  duly  authenticated,  to  receive  all 
others  which  may  be  presented,  and  report  them  to  the  Assembly  accord- 
ing to  the  circumstances.  But  these  they  would  neither  put  upon  the  roll, 
nor  report  on  the  list  of  doubtful  commissions,  so  that  they  might. come 
before  the  body  for  its  judgment.  Were  they  wrong  in  this?  We  have 
the  opinion  of  one  of  these  gentlemen  themselves,  that  they  were.  The 
record  shows  no  pledge  that  they  would  not  report  the  commissions  to  the 
house.  Mr.  Krebs  tells  us  that  he  was  desirous  to  receive  and  report 
them,  according  to  the  facts  of  the  case,  and  thus  to  give  the  Assembly 
an  opportunity  of  acting  upon  them.  The  other  member  of  the  commit- 
tee, not  indeed  being  a  majority  of  it,  for  there  were  only  two,  but  the 
superior  in  point  of  years,  was  not  willing  to  adopt  this  course.  Mr. 
Krebs  seems  to  have  been  the  most  active  member  of  the  committee,  and 
why  Dr.  McDowell  objected,  he  has  not  explained,  though  examined 
once  or  twice.  When,  then,  we  say  that  the  clerks  were  guilty  of 
repeated  acts  of  misconduct,  our  opinion  is  supported  by  that  of  Mr. 
Krebs.  Indeed  it  was  obvious  that  his  proposition  was  most  reasonable. 
Here  were  mere  ministerial  officers,  deciding  on  the  rights  of  members  to 
their  seats,  nay,  on  the  rights  of  the  constituency  of  the  Church,  without 
giving  the  chance  of  an  appeal  from  their  decision,  but  leaving  the 
exscinded  Presbyteries  to  bring  their  case  before  the  Assembly  in  the 
best  way  they  could.  They  were  endeavouring  to  make  their  decision, 
on  the  subject  of  the  admission  or  re-admission  of  these  men,  conclusive 
and  final. 

Who  were  these  clerks  ?  Not  members  of  the  Assembly — never  so 
of  necessity,  and,  in  fact,  not  so  in  1837.  The  tenure  of  their  office, 
which  they  held  during  pleasure  only,  as  you  have  seen  from  the  express 
language  of  the  Constitution,  made  them  at  all  times  liable  to  be  turned  out 
of  office,  by  a  vote  of  the  Assembly.  So  much  for  the  course  which  they 
adopted  and  pursued. 

Next  we  come  to  the  most  vital  part  of  the  inquiry,  the  conduct  of  the 
higher  officer,  the  Moderator  of  the  Assembly  of  1837.  In  the  first  place 
we  find  him  coming  in  at  the  commencement  of  the  divine  services,  not 
as  usual,  untrammelled  and  unpledged;  not  simply  to  perform  his  duty,  the 
principal  part  of  whichis  the  conducting  of  divine  service;  but  from  nine 
o'clock  in  the  morning — perhaps  they  had  slept  all  night  upon  their  arms 
— he  with  the  other  champions  of  the  Old-school  occupied  the  house,  a 
compactly  formed  and  regular  phalanx.  The  troops  were  stationed  in 
different  parts  of  the  building.  The  Moderator  with  his  picked  cohort 
occupied  the  centre,  he  with  the  mysterious  hammer  in  his  hand.     Then 


MR.  MEREDITH'S  ARGUMENT.  259 

the  different  corps  were  disposed  about  the  south-west  portion  of  the 
house,  at  the  different  points  of  action.  Some  of  them,  it  seems  were 
afflicted,  though  not  with  a  legislative  cough,  with  a  very  troublesome 
asthma,  and  therefore  it  was.  I  presume,  that  the  attendance  of  the  surgeon 
of  the  forces  was  found  requisite;  for  how  else  Dr.  Harris  had  crept  into 
the  place  which  he  has  told  you  that  he  occupied,  I  cannot  imagine,  as  he 
was  not  a  member  of  the  Assembly.  They  may  be  compared  to  the 
knights  hospitallers  of  ancient  times — a  most  gallant  band  indeed !  Now, 
I  say,  first,  that  any  person  casting  his  eye  upon  the  Moderator,  might 
,have  seen  that  he  was  pledged  and  trammelled;  that  he  had  his  forces  ar- 
rayed for  open  rebellion  against  the  sovereignty  of  the  Assembly  of  1S3S. 
The  high  places  were  all  occupied,  and  pickets  had  been  stationed  behind, 
which  were  to  be  called  in  when  the  final  prayer  should  be  concluded. 
The  Moderator  was  acting  not  merely  in  the  regular  discharge  of  his  duty; 
but  he  was  at  the  head — the  leader — of  an  insurrectionary  force;  and 
whether  the  rebels  v/ere  too  strong  for  the  loyal  subjects  is  the  only  ques- 
tion which  you  have  to  determine. 

On  the  other  hand  you  see  the  opposite  party,  though  they  came  not  as 
a  party,  but  as  their  forefathers  had  been  accustomed  to  come  to  the  house 
of  religious  worship — you  see  them  wandering  round  to  the  farthest  doors 
of  the  church,  and  taking  the  lower  seats  which  had  been  left  vacant. 
Many  of  them  came  in  directly  from  the  country,  as  one  of  them  has  him- 
self told  you,  without  having  had  any  previous  consultation.  They  all 
expected  an  orderly  and  harmonious  meeting  of  the  Assembly,  and  drop- 
ping in,  each  one  as  he  arrived,  they  sat  down  as  they  entered  in  the  hum- 
blest places. 

All  this  serves  as  a  clue  to  the  explanation  ofthe  Moderator's  behaviour. 
His  misconduct  was  occasioned  by  violent  excitement  and  loss  of  temper: 
this  I  am  authorized  to  say  from  the  evidence.  It  is  impossible  that  in 
calm  moments  he  could  have  acted  thus.  I  assert  then,  and  shall  clearly 
show,  that  Dr.  Elliott  laboured  under  great  and  unpardonable  excitement 
— unpardonable  except  as  it  arose  from  the  infirmity  of  his  nature.  The 
first  motion  was  that  made  by  Dr.  Patton.  It  seems  by  the  testimony 
given  on  the  other  side,  though  none  of  our  witnesses  chanced  to  hear  it, 
that  a  prior  step  in  the  proceeding  was  a  call  from  Dr.  Elliott  for  the  clerk 
to  report  the  roll.  Our  witnesses  did  not  hear  this  call,  for  very  obvious 
reasons,  and  Dr.  Patton  took  the  floor.  He  desired  to  make  a  motion  in 
reference  to  the  formation  of  the  roll,  but  was  denied  the  privilege.  He 
appealed  from  the  decision  of  the  Moderator,  and  his  right  to  make  an  ap- 
peal was  also  denied  by  Dr.  Elliott,  who  gave  as  a  reason  for  his  decision, 
that  there  had  been  no  roll  reported,  and  that  consequently  there  was  no 
house  to  which  any  one  could  offer  a  motion  or  appeal.  Dr.  Patton  then, 
without  the  least  violence,  or  the  smallest  demonstration  of  warmth  or 
excitement  took  his  seat.  The  report  of  the  clerks  was  then  read  by  Mr. 
Krebs,  and  was  found  to  include  the  names  of  commissioners  from  every 
Presbytery  belonging  to  the  Church,  excepting  those  from  the  third  Pres- 
bytery of  Philadelphia,  and  from  the  twent3^-eight  Presbyteries  belonging 
to  the  four  exscinded  Synods.  Dr.  Elliott  then  declared,  that  those  per- 
sons whose  names  were  contained  in  this  select  list  were  to  be  considered 
members  of  the  Assembly.  The  house  then,  such  as  it  was,  was  at  that  time 
organized,  and  organijjpd  according  to  the  Moderator's  own  liking.     Dr. 


260  PRESBYTERIAN  CHURCH  CASE. 

Elliott  then  made  a  call  for  other  commissioners  of  a  certain  kind  to  be 
presented.  Some  difficulty  has  been  raised  in  regard  to  the  precise  words 
and  meaning  of  this  call,  and  it  would  be  well  if  the  matter  could  be  un- 
derstood. It  is  a  curious  fact  that  on  the  question  of  the  particular  words 
used,  in  this  one  act,  performed  at  a  time  when  there  was  no  noise  or  con- 
fusion, there  are  no  less  than  three  distinct  and  varying  accounts  coming 
from  the  other  side.  The  minute  of  the  Old-school,  a  paper  prepared 
with  great  care — for  the  preparation  of  it  was  confided  to  a  committee  spe- 
cially appointed  for  the  purpose,  of  which  committee,  too,  Dr.  Elliott  was 
himself  a  member — this  minute,  written  after 'a  full  consultation  with  the 
clerks,  formally  reported  to  the  Assembly,  and,  as  we  are  told,  unani- 
mously adopted,  though  neither  the  appointment  of  the  committee,  nor  its 
report,  ap{)ears  upon  tlie  face  of  the  record,  testifies  that  the  call  was  in 
these  words: 

'<  After  the  report  of  the  Committee  of  Commissions  had  been  read,  the 
Moderator  stated  that  the  commissioners  whose  commissions  had  been 
examined,  and  whose  names  had  been  enrolled,  were  to  be  considered  as 
members  of  this  Assembly ;  and  added,  that  if  there  were  any  commis- 
sioners present  from  the  Presbyteries  belonging  to  the  Presbyterian 
Church  in  the  United  States  of  America,  lohose  names  had  not  been 
enrolled,  then  loas  the  time  for  presenting  their  commissio?is." 

This  is  the  formal  record  made,  not  by  the  clerks,  in  the  hurry  and 
confusion  of  the  proceeding,  but  by  a  formal  committee  appointed  for  that 
special  purpose,  of  which  Dr.  Elliott  himself  was  one.  This  committee, 
too,  consulted  with  the  clerks,  and  then  adopted  what  I  have  read  as  the 
solemn  record.  This  says,  he  "  added,  that  if  there  were  any  commis- 
sioners present  from  the  Presbyteries  belonging  to  the  Presbyterian 
Church  in  the  United  States  of  America,  whose  names  had  not  been 
enrolled,  then  was  the  time  for  presenting  their  commissions."  Next  there 
are  twelve  or  fifteen  witnesses,  on  the  part  of  those  who  adopted  this 
minute,  all  of  whom  themselves  voted  upon  its  adoption,  who  say,  first, 
that  Dr.  Elliott  called  for  commissions  which  had  not  been  presented  to 
the  clerks;  and  next,  that  Dr.  Mason,  when  he  rose,  said  that  those  which 
he  tendered  had  been  presented  to  the  clerks  and  by  them  rejected.  This 
is  the  second  account  of  the  matter.  Now  taking  their  own  minute  as 
correct,  there  can  be  no  difficulty  or  dispute  that  this  was  the  very  time 
for  Dr.  Mason  to  ofier  the  commissions  which  he  held.  According  to 
that,  the  call  was  for  commissions  of  regular  commissioners,  who  had  not 
been  enrolled,  and  the  commissioners  from  the  four  exscinded  Synods 
had  none  of  them  been  enrolled.  These  two  contrarient  statements  are, 
then,  from  the  same  sources ;  and  I  do  not  know  who  is  better  qualified, 
to  decide  between  them  than  Dr.  Elliott  himself,  whose  testimony  you 
have  heard:  it  furnishes  the  third  account  of  this  matter.  This  agrees 
not  in  terms  exactly,  but  in  spirit,  with  the  first  account;  with  the  second, 
in  neither  its  terms  or  its  spirit.  Where  there  is  such  a  contradiction  as 
to  his  own  words,  he  is  certainly  the  best  arbiter  of  the  dispute.  "1 
called,"  says  Dr.  Elliott. — "I  called  for  commissions  which  had  not  been 
presented  to  the  clerks  and  enrolled."  Now  those  which  Dr.  Mason 
tendered,  had  not  been  presented  and  enrolled.  So  according  to  the  tes- 
timony of  both  the  Old-school  minute  and  Dr.  Elliott  himself.  Dr.  Ma- 
son's offer  was  directly  in  answer  to  the  Moderator's  call.      I  take  in  this 


MR.  MEREDITH'S  ARGUMENT.  261 

case  testimony  selected  by  the  other  side.  When  Dr.  Patton  rose  and 
offered  certain  resokitions  in  regard  to  these  very  commissions,  he  was 
told  that  was  not  the  right  time — not  the  right  time;  that  the  formation 
of  the  roll  was  the  next  thing  in  order;  the  clerks  must  first  make  their 
report.  Well,  the  report  of  the  clerks  is  read  and  received;  and  then 
Dr.  Elliott  announces,  that  now  is  the  right  time  to  do  what  before  was 
out  of  order.  So  my  clients  understood  his  call.  They  thought  he 
meant  to  say,  "Now  the  moment  has  come:  you  were  too  hasty  before. 
Now  all  such  commissions  as  have  not  been  enrolled,  as  have  not  been 
,  included  in  the  report  of  the  committee,  may  be  presented."  Upon  that 
hint  Dr.  Mason  rose  and  spoke.  He  was  plainly  in  order;  for  the  call  of 
the  Moderator  had  made  him  so.  And  unless  you  throw  out  the  testi- 
«ionyof  Dr.  Elliott,  who  certainly  is  to  be  presumed,  until  the  contrary 
is  shown,  to  know  best  what  he  himself  said,  and  the  testimony  of  the 
formal  record — the  minute  carefully  prepared  immediately  after  the  trans- 
action, by  a  committee  appointed  for  the  purpose — unless  you  discard 
this  testimony  for  the  loose  suggestions  of  persons,  who,  many  of  them, 
were  not  at  all  aware  of  the  real  import  of  the  call,  you  must  believe  that 
the  Moderator  explicitly  called  for  commissions  which  had  not  been 
enrolled,  from  Presbyteries  entitled  to  be  represented  in  the  Assembly. 

But  apart  from  the  testimony,  and  whether  he  called  for  such  commis- 
sions or  not,  a  matter  which  is  perhaps  of  very  little  importance,  by  the 
laws  of  the  land,  and  universal  parliamentary  law  and  practice,  the  motion 
of  Dr.  Mason,  even  if  the  Moderator  made  no  call  at  all,  was  strictly  in 
order — was  offered  just  at  the  proper  time.  In  Parliament,  before  the 
house  is  organized,  no  question  as  to  disputed  rights  of  membership  can 
be  tried.  These  were  not  disputed  commissions;  but  even  if  they  had 
been,  at  any  period,  after  the  report  of  the  clerks,  and  the  declaration  of 
the  Moderator  that  the  house  was  now  organized,  the  members  would 
have  had  a  perfect  right,  according  to  the  strictest  parliamentary  law,  and 
the  law  of  the  land,  to  claim  their  seats.  Dr.  Mason's  resolution  had  no- 
thing to  do  with  technical  rules  of  order;  nor  was  it  to  be  considered  in 
the  light  of  a  privileged  question.  Various  rules  of  order  have  been  intro- 
duced, but  such  rules  are  not  essential,  and  they  may  be  violated  by  anjf 
house  five  times  in  an  hour,  with  perfect  impunity.  But  first,  by  all  the 
laws  and  usages  of  the  Assembly  itself,  Dr.  Mason  had  a  right  to  present 
the  motion  which  he  did  present.  This  indeed  is  but  a  statement  of  the 
doctrine  of  all  law — of  the  clearest  principles  of  common  sense,  and  com- 
mon justice.  I  should  be  very  sorry  that  such  a  question  as  the  present 
should  be  decided  upon  a  mere  point  of  order.  I  have  examined  carefully 
the  regulations  of  this  Assembly — this  quasi  corporation — and  I  find 
among  them  no  rule  violating  the  law  of  the  land.  Secondly,  Dr.  Mason 
was  in  order  according  to  general  parliamentary  rules,  though  these  and 
parliamentary  law  are  totally  distinct.  The  first  are,  it  is  true,  essential  to 
the  due  transaction  of  business;  they  are  rules  of  convenience;  but  they 
may  be  violated  forty  times  a  day,  and  there  will  be  no  destruction  of  the 
rights  of  individuals.  For  instance,  it  is  a  law  of  every  parliamentary 
body,  that  the  first  business  shall  be  the  formation  of  the  roll,  in  order  to 
ascertain  who  are  entitled  to  seats;  a  question  not  to  be  decided  by  min- 
isterial ofiicers,  except  temporarily,  until  the  body  itself  can  determine 
the  matter.     This  is^iot  a  mere  parliamentary  rule:  it  is  a  law  absolutely 


2Q2  PRESBYTERIAN  CHURCH  CASE. 

essential  to  the  very  existence  of  a  body  of  this  kind.  If  a  rule  were 
made  constituting  a  standing  committee  of  the  body,  a  court  to  decide  the 
rights  of  members  to  their  seats,  authorized  to  try  these  matters  by  hearsay 
testimony,  and  providing  that  the  admission  of  such  claimants  should  be 
the  last  business  transacted,  it  would  be  null  and  void — a  direct  violation 
of  the  privileges  of  all  the  members  of  the  body  corporate.  The  regula- 
tion, then,  before  mentioned  is  essential  to  every  organized  Assembly,  and 
it  is  founded  on  parliamentary  law,  which  is  the  law  of  the  land.  As  for 
the  other  code  it  is  of  little  importance  here.  This  one  is  sufficient,  and 
no  matter  what  were  the  rules  of  the  Assembly  of  1S38,  or  the  preceding 
Assembly;  or  whether  the  latter  continued  in  force  until  the  former  were 
enacted:  we  are  bound  in  this  case  simply  by  the  laws  of  the  land.  Sup- 
pose a  rule  of  order  prescribes  that  the  old  Moderator  shall  address  the 
new  in  a  certain  set  form  of  words:  the  omission  of  these  words  will  not 
invalidate  the  election  of  the  new  Moderator.  Or  suppose  a  rule  directs 
to  give  the  Moderator  a  cane:  this  is  a  non-essential  matter,  and  might  be 
disregarded,  without  any  injury,  or  the  violation  of  any  man's  rights.  But 
when  you  come  to  the  great  provisions  of  parliamentary  law  you  find  them 
imperative.  This  law  cannot  be  violated  without  exposing  individual  or 
corporate  rights  to  injury.  I  do  not  know  what  the  unbound  and  half- 
bound  authorities — the  little  books  of  parliamentary  order  which  have  been 
produced  here — may  decide  upon  this  point,  but  what  I  have  laid  down 
must  be  of  the  essence  of  every  law. 

The  right  of  a  member  of  any  parliamentary  body  to  his  seat  is  a  ques- 
tion of  privilege — a  very  different  thing  from  a  privileged  question. 
A  privileged  question  is  one  which  is  entitled,  whenever  it  arises,  to  a 
certain  prescribed  place  in  the  course  of  proceedings;  and  the  rule  giving 
it  precedence  may  be  departed  from  without  injury  to  the  rights  of  a  sin- 
o-le  individual.  Privileged  questions  are,  however,  to  be  distinguished 
from  the  order  of  business,  which  is  the  mere  general  arrangement  of  the 
whole  business  that  occupies  a  body — the  distribution  of  it  in  a  regular 
succession  or  series.  The  order  of  business  is  governed  by  the  standing 
rules  of  Parliament.  In  our  legislative  bodies  the  regulations  in  regard  to 
the  time  of  transacting  each  particular  species  of  business,  giving  each  a 
place  in  the  series,  concern  merely  the  order  of  business.  Thus  in  the 
Legislature  of  this  State,  the  first  thing  is  the  reading  of  the  journals;  se- 
cond, comes  the  presentment  of  petitions,  according  to  the  direction  of 
the  Constitution;  third,  original  resolutions;  fourth,  reports  of  commit- 
tees; fifth,  bills  on  third  reading;  and  so  on  of  other  matters.  A  privi- 
leged question  is  one  which  does  not  necessarily  belong  to  the  established 
order  of  proceedings,  but  whenever  it  arises  is  entitled  to  take  a  certain 
place  in  the  course  of  business.  Such  are  questions  on  amendments  of 
bills  or  resolutions;  on  commitment;  on  postponement;  the  previous 
question;  or  that  which  takes  precedence  of  all  these,  a  question  on  ad- 
journment. Then  come  thirdly,  questions  of  privilege,  distinguished 
'from  both  the  order  of  business  and  privileged  questions.  If  the  atten- 
tion of  a  deliberative  body  is  called  to  a  question  of  privilege,  this  must 
take  the  place  of  any  other  business  in  which  the  body  may  at  the  time 
be  engaged.  If  a  member  rises  in  his  place,  and  proposes  a  question  of 
privilege,  every  thing  else  is  dropped,  and  the  member's  privilege  must 
immediately  be  taken  into  consideration.     Such  is  notoriously  the  case; 


MR.  MEREDITH'S  ARGUMENT.  623 

yet  perhaps  no  house  has  a  written  rule  to  this  effect.  Indeed  from  the 
very  nature  of  things,  a  question  of  privilege  supersedes,  for  the  time,  every 
written  rule  respecting  the  details  of  business. 

All  of  you,  gentlemen,  have  had  some  experience  in  these  matters;  or 
you  have  learned  something  in  regard  to  them,  either  from  the  records  of 
other  times,  or  from  some  manual  of  parliamentary  practice — some  "  Or- 
der  made  easy.'"'  Show  me  the  case  in  any  parliamentary  body,  in  any 
deliberative  assembly  whatever,  in  which  a  member  has  risen  and  pre- 
sented a  question  of  privilege,  and  the  presiding  officer  having  declared 
him  out  of  order,  his  decision  has  been  sustained.  When  a  bill  is  before 
a  house  on  its  third  reading,  any  one  who  comes  in,  or  rises  in  his  place, 
is  entitled  to  be  instantly  heard  on  a  question  of  privilege,  and  the  reading 
of  the  bill,  with  every  other  business,  must  be  suspended,  till  that  question 
is  decided  upon.  Well,  the  most  important  question  of  privilege  that 
could  be  raised,  that  which  goes  to  the  very  root  of  a  body's  existence,  is 
a  question  in  regard  to  the  claim  of  a  seat.  Then  the  complaint  which 
was  to  be  made  of  the  misconduct  of  the  clerks  involved  a  question  of 
privilege  of  the  most  important  kind.  The  clerks  had  violated  their 
duty,  and  had  attempted  to  mutilate  the  body;  to  exclude  a  part  of  the 
commissioners  to  the  Assembly,  Avhom  they  did  not  like,  and  whose 
names  they  refused  to  report  to  the  house.  This  complaint  immeiliately 
raised  a  question  of  privilege  of  the  highest  nature ;  and  Dr.  Mason  had  an 
unalienable  right  to  be  heard,  according  to  the  law  of  the  Assembly,  the 
universal  parliamentary  law,  and  the  law  of  the  land  :  and  most  'of  all, 
when  his  application  was  made  at  the  very  time  selected  by  the  Modera- 
tor, and  in  obedience  to  his  direct  call  for  the  commissions. 

Here  it  will  be  well  to  mark  some  other  matters  of  smaller  importance, 
but  still  serving  to  elucidate  the  case.  What  was  the  meaning  of  the 
Moderator's  reply  to  Dr.  Mason,  supposing  that  the  words  used  were 
those  which  some  of  the  witnesses  for  the  defendants  have  sworn  to,  but 
which  seemed  to  have  escaped  the  hearing  of  ours — that  he  was  out  of 
order  at  that  time,  or  that  he  was  not  now  in  order  ?  Dr.  Elliott  himself 
declares  that  this  was  the  form  of  speech  which  he  used,  and  I  do  not 
mean  to  endeavour  to  contradict  him.  He  certainly  may  be  supposed 
best  able  to  give  an  accurate  account  of  what  he  himself  said.  Suppose 
lie  did  say,  "  You  are  out  of  order  at  this  time."  He  certainly  then  meant 
to  say,  "There  is  a  time  when  you  will  be  in  order" — in  five  minutes, 
perhaps,  or  an  hour.  What  was  this  motion  which  the  Moderator  thus 
declared  out  of  order  at  that  time.-*  It  was  not  a  motion  made  according 
to  the  provisions  of  the  Act  of  1837 — a  motion  craving  admission  for  the 
excluded  members,  on  proof  of  their  repentance,  and  their  having  cor- 
rected the  errors  charged  upon  them .  It  was  a  motion  to  complete  the 
roll  by  adding  to  it  the  names  of  those  commissioners  whose  commissions 
had  been  presented  to  the  clerks,  and  unjustly  rejected  by  them.  If  Dr. 
Elliott  and  his  friends  of  the  Old-school  party,  decided  that  a  time  ap- 
proached when  this  motion  would  be  in  order,  it  was  the  strongest  proof 
in  the  world  that  they  thought  it  a  legitimate  motion.  Now  it  could  be 
legitimate  only  on  the  supposition  that  the  proceedings  of  1837  were 
void;  else  it  would  have  been  out  of  order  at  any  rate,  and  at  every  time, 
just  as  would  have  been  a  motion  for  the  admission  of  a  member  for  Con- 
stantinople.    The  ev^ent  corollary  from  this  is,  that  Dr.  Elliott  knew  he 


264  PRESBYTERIAN  CHURCH  CASE. 

was  acting  wrongfully.  He  knew,  that  if  the  motion  was  in  order  at  any 
time  it  was  at  this.  He  knew,  that  the  exscinding  resolutions  were  void; 
and  that  he  was  lending  himself  to  carry  out  the  unconstitutional  and 
unjust  purposes  of  the  majority  of  1837.  This  is  a  conclusion,  the  legiti- 
macy of  which  cannot  be  denied.  If  you  give  any  force  at  all  to  these 
words  of  the  Moderator,  it  is  an  absolutely  necessary  conclusion.  Now 
at  this  very  time  as  I  have  shown,  Dr.  Elliott  did  actually  call  for  the 
commissions  of  the  rejected  commissioners.  I  have  shown  then  clearly, 
that  Dr.  Mason's  motion  was  strictly  in  order;  that  such  commissions  as 
he  presented,  might  have  been  presented  at  all  times.  This  was  the  first 
day  of  the  session  of  the  Assembly,  and  it  is  the  duty  of  the  officers  of 
that  body,  and  of  the  house  itself,  to  admit  a  member  presenting  himself 
at  any  period  of  its  session.  The  question,  moreover,  in  regard  to  the 
right  of  membership  is  a  privileged  question  and  always  in  order.  Fur- 
ther, Dr.  Elliott  himself  called  virtually  for  the  commissions  which  had 
been  presented  to  the  clerks  and  rejected. 

Dr.  Mason  appealed  from  the  Moderator's  decision;  but  the  right  of 
appeal  also  was  refused.  By  what  code  will  our  opponents  pretend  to 
justify  this  refusal  ?  They  cannot  say  that  no  house  was  yet  in  existence. 
The  house  was  at  this  time  organized,  or  at  least  partly  organized.  Those 
members  whose  names  had  been  enrolled  had  been  declared  entitled  to 
seats:  they  were  the  house.  There  could  be  no  pretence  that  the  body 
of  men,  whose  commissions  had  been  approved,  were  not  an  assembly 
sufficiently  organized  for  business,  since  immediately  after  the  New- 
school  had  left  the  house,  or  even  before,  if  the  statements  of  some  of  the 
witnesses  are  correct,  a  motion  was  actually  made,  put,  and  carried,  for 
the  appointment  of  a  Committee  of  Elections.  Show  me  the  rule  which 
gives  the  presiding  officer  of  such  a  body  the  right  to  determine  any 
question  finally,  and  refuse  to  put  an  appeal  from  his  decision.  Where  is 
the  rule  which  provides,  stet  pro  raiione  voluntas?  This  would  do  very 
well  for  a  Roman  Emperor.  Indeed,  one  gentleman  has  compared  Dr. 
Elliott  to  a  Roman  dictator,  his  sic  volo,  sic  jubeo  being  set  up  for  a 
supreme  law.  But  I  say,  show  me  a  single  case  in  which  the  speaker  of  a 
house  has  ever  before  refused  to  put  the  question  on  an  appeal  from  his 
decision.  The  power  of  declaring  a  decision  of  a  presiding  officer  law,  is 
a  power  belonging  to  the  house  exclusively.  But  here  we  see  it  usurped 
by  the  officer  himself,  pretending  to  be  the  sole  judge  of  the  validity  of 
his  own  decision.  You  can  see  here  the  very  same  lust  for  power  begin- 
ning with  the  clerks,  and  creeping  up  from  the  lower  to  the  higher  offi- 
cers. First,  the  clerks  assume  the  right  of  giving  a  final  judgment  on 
the  claims  of  certain  members;  and  then  we  find  the  Moderator  usurping 
the  same  power,  by  a  higher  authority. 

But,  if  tlie  rejected  commissioners  were  really  entitled  to  their  seats, 
notwitlistanding  the  decision  of  the  Moderator  and  clerks,  they  were  still 
in  the  right.  It  is  a  mistake  to  suppose  that  even  the  house  itself  has  the 
power  to  determine  finally  the  claims  of  commissioners.  They  may 
decide  whether  a  commission  is  properly  authenticated,  but  their  judg- 
ment, if  it  goes  farther  than  this,  is  subject  to  review  and  correction. 
There  '^as  no  power  in  the  majority  of  the  Assembly  of  either  1837  or 
1838,  to  determine  finally  the  rights  of  any  member's  constituency. 

Speaking  in  a  jjarliamentary  sense,  I  say  that  an  appeal  is,  under  all 


MR.  MEREDITH'S  ARGUMENT.  265 

circumstances,  required  to  be  put.  What  was  to  prevent  the  question 
being  propounded  on  Dr.  Mason's  appeal  ?  It  was  out  of  order  at  that 
time,  said  the  Moderator.  But  suppose  the  original  resolution  had  been 
altogether  and  confessedly  out  of  order — suppose  it  offered  an  amend- 
ment, while  the  previous  question  was  pending,  and  the  Moderator  had 
pronounced  it  out  of  order:  could  not  an  appeal  be  taken  from  his  deci- 
sion? Was  the  Moderator  to  be  the  sole  judge?  His  refusal  showed 
plainly  his  purpose  to  assist  in  carrying  out  the  void  proceedings  of 
1837:  it  showed  that  he,  like  the  clerks,  had  been  pledged  to  a  certain 
course  of  conduct;  that  like  them,  he  did  not  consider  the  Presbyteries 
from  which  these  commissioners  came,  as  belonging  to  the  Church  at  all; 
but  that  they  had  been  entirely  and  lawfully  excluded  by  the  exscinding 
•resolutions  of  1837. 

Thus  far  the  proceedings  had  been  all  quiet  and  peaceable.  Dr.  Patton 
had  not  shown,  in  any  thiug,  the  least  irritation  or  warmth  of  feeling:  Dr. 
Mason's  conduct  was  entirely  respectful.  Several  of  the  witnesses  brought 
forward  on  the  other  side  have  spoken  of  his  extreme  civility.  In  the 
mean  time,  however,  there  was  a  change  evidently  taking  place  in  the 
Moderator's  feelings.  Nothing  is  so  apt  to  make  a  man  lose  his  temper 
as  his  being  put.evidently  in  the  wrong.  Nothing  is  so  hard  to  be  borne, 
as  that  persons  whom  we  wish  to  consider  as  engaged  in  a  disorderly  pro- 
ceeding, should  succeed  while  behaving  in  the  civilest  manner  possible, 
without  our  having  the  power  to  resist,  in  putting  us  entirely  in  the  wrong. 
We  can  show  the  effect  in  this  case  produced  upon  the  mind  of  Dr.  Elliott, 
from  his  behaviour  in  the  next  scene  of  the  drama.  Thus  far  he  had  had 
no  excuse  for  losing  his  temper:  he  had  issued  his  orders  to  the  right  and 
to  the  left,  and  they  had  been  obeyed.  The  next  scene  was  that  in  which 
Mr.  Squier  made  his  claim  to  a  seat  and  tendered  his  commission.  We 
shall  show  by  his  conduct  to  him,  what  the  Moderator's  feelings  were  by 
this  time.  Mr.  Squier  rises  and  presents  his  commission — not  the  com- 
missions of  all  the  rejected  delegates — but  merely  his  own,  as  he  himself 
declares.  He  presents  it  as  a  commission  which  has  been  before  offered 
to  the  clerks  and  refused;  and  he  claims  a  seat  on  that  floor.  The  ques- 
tion, from  whence  he  came,  was  asked  by  the  Moderator.  He  answered, 
from  the  Presbytery  of  Geneva,  and  that  that  Presbytery  was  within  the 
bounds  of  the  Synod  of  Geneva.  Then  Dr.  Elliott  replied,  "We  do  not 
know  you."  He  did  not  mean  that  he  vv'as  not  acquainted  with  Mr. 
Squier;  for  he  tells  us,  that,  in  point  of  fact,  he  had  a  slight  personal  ac- 
quaintance with  him.  He  did  not  mean  that  he  had  no  knowledge  of  the 
man.  But  his  words  uttered  as  they  were,  by  a  divine  to  a  divine,  had  a 
most  significant  import.  You  all  remember  that  they  are  a  part  of  that 
dreadful  denunciation,  which  shall  be  pronounced  at  the  last  day,  upon  those 
who  shall  stand  on  the  left  hand,  the  goats,  consigning  them  to  eternal 
woe.  He  might  as  well  have  continued,  "  Depart  ye  cursed  into  everlast- 
ing fire."  This  would  have  added  nothing  to  the  strength  and  dreadful 
character  of  the  expression.  He  might  as  well  have  said  at  once,  go  to  a 
place  which  must  never  be  mentioned  to  ears  polite.  And  why  should  he 
direct  him  to  go  to  that  place:  why  should  he  utter  such  a  terrible  denun- 
ciation? His  words  show  plainly  the  violent  excitement  under  which  he 
laboured,  though  he  was  able  to  keep  his  countenance  from  betraying  the 
emotion  struggling  in  his  bosom.     Theife  can  be  no  other  reason  given, 

34 


266  PRESBYTERIAN  CHURCH  CASE, 

than  that  a  cloud  of  human  passion  had  risen  in  his  breast,  and  oversha- 
dowed, and  obscured  the  diviner  light  which  usually  shone  into  it  from 
above.  Dr.  Mason  took  an  appeal  with  the  utmost  decency  and  civility. 
There  is  certainly  no  book  of  authority  which  shows,  that  a  similar  appli- 
cation was  ever  before  so  received.  In  the  British  House  of  Commons  a 
son  of  Edmund  Burke  once  committed  a  most  grievous  breach  of  order, 
by  marching  into  the  house  and  depositing  some  papers  on  the  clerk's  ta- 
ble. The  serjeant-at-arms  endeavoured  to  arrest  him,  and  a  regular  chase 
commenced  under  and  over  the  tables,  and  over  the  benches;  but  young 
Burke  finally  escaped,  after  having  done  as  much  mischief  as  a  bull  in  a 
china  shop.  Yet  we  do  not  hear  of  the  speaker's  telling  him  to  go  to  that 
nameless  place.  When  Vice  President  Burr  was  suffering  so  intensely 
from  Randolph's  torturing  invective,  and  lacerating  sarcasm,  he  permitted 
no  expression  of  this  kind  to  escape  him.  Show  me  the  case,  before  this 
one,  in  which  a  civil  application  of  that  kind,  has  been  met  by  such  an 
awful  denunciation  as  was  uttered  by  Dr.  Elliott.  I  certainly  know  of 
none.  One  such,  indeed,  has  happened  recently,  since  the  proceedings  in 
the  Seventh  Church  in  1838;  and  perhaps  in  this  case,  the  precedent  fur- 
nished by  Dr.  Elliott  was  followed.  The  Speaker  of  the  Arkansas  Legis- 
lature, improving  the  example,  left  the  chair,  and  buried  a  bowie  knife  in 
the  heart  of  one  of  the  members  who  had  offended  him;  and  sent  him  un- 
ceremoniously to  that  place  to  which  Dr.  Elliott  merely  directed  Mr. 
Squier  to  go.  Perhaps,  after  this  exploit,  he  said,  "  I  hope  we  shall  have 
order." 

Could  there  have  been  a  greater  violation  of  order  than  that  of  which 
Dr.  Elliott  nimself  was  thus  guilty?  Not  only  were  Dr.  Mason's  motion 
and  appeal  refused,  but  he  uttered  this  tremendous  denunciation,  which 
was  quite  as  well  understood  as  if  he  had  used  the  more  common  and  vul- 
gar phrase.  What  stronger  reason  could  there  have  been  for  his  deposi- 
tion? On  the  other  side  it  is  said,  that  all  this  was  no  matter;  that  he 
might  have  been  as  immoderate  as  he  pleased  himself,  and  yet  the  house 
have  had  no  right  to  turn  him  out.  Now,  in  the  first  place,  observe,  gen- 
tlemen, that  Dr.  Elliott  was  not  the  Speaker  of  that  house,  nor  was  he  in- 
dependent of  it,  and  entirely  irresponsible  for  his  conduct.  He  was  the 
person  whom  the  rules  of  the  Assembly  said  should  preside  in  the  body, 
if  present,  after  preaching  the  sermon  at  the  commencement;  but  only 
until  another  Moderator  should  be  chosen.  In  other  words,  he  was — not 
what  my  learned  friend,  by  a  figure  of  speech  has  called,  though  not  very 
accurately,  the  germinating  root  of  the  New  Assembly;  for  then  we 
should  have  the  anomaly  of  the  plant  growing  and  flourishing  without  any 
root,  or  in  the  absence  of  it;  since  the  moment  the  former  rears  its  head 
above  the  soil  the  latter  perishes — he  was  a  mere  accident  to  the  Assem- 
bly of  1838;  and  if  that  Assembly  had  thought  fit  that  Dr.  Beman  should 
preach  the  sermon,  and  preside  during  the  organization,  he  might  have 
done  so  without  difficulty  or  irregularity,  a  majority  concurring  in  the 
choice.  The  rule  provides  that  the  old  Moderator  shall  preside  until  a 
new  one  be  chosen:  does  this  mean  that  another  shall  not  be  chosen  until 
he  shall  agree?  The  old  Moderator  is  but  the  leaf  of  the  old  year  still 
hanging  on  the  bough,  but  ready  at  any  moment  to  be  pushed  off  by  the 
fresh  foliage.  He  is  a  mere  accident  to  the  new  Assembly.  He  has  no 
legitimate  powers,  but  is  placed  in  the  chair  merely  to  preserve  order. 


MR.  MEREDITH'S  ARGUMENT. 


267 


He  is  subject,  by  the  express  tenure  of  his  office,  to  be  removed,  because 
he  is  to  preside  merely  until  a  new  Moderator  is  appointed.  But,  besides, 
Dr.  Elliott  had  been  guilty  of  gross  misconduct,  and  that  was  the  reason 
of  his  being  removed  at  that  precise  time,  though,  as  I  have  shown,  he  was 
liable  to  removal  at  any  time.  That  every  house  has  a  right  to  remove 
its  Speaker,  at  its  own  pleasure,  will  not,  I  presume,  be  doubted.  There 
have  been  frequent  instances  in  the  history  of  the  English  Parliament  of 
the  removal  of  Speakers,  or  of  attempts  to  remove  them.  The  last  oc- 
curred in  the  year  1673,  when  an  endeavour  was  made  to  depose  SirEd- 
'Ward  Seymour,  and  the  question  was  put  upon  his  deposition,  but  was  not 
agreed  to.  This  being  the  state  of  the  case,  and  it  being  obvious  that  the 
Moderator  was  applying  all  the  force  of  his  mind,  and  the  force  of  much 
hiore  than  his  legitimate  authority,  to  obstructing  and  hindering,  instead 
of  facilitating  the  transaction  of  business;  and  that  so  long  as  he  presided, 
the  organization  of  the  house  could  not  be  lawfully  effected,  it  became  ne- 
cessary to  remove  him.  It  is  a  well  settled  principle  of  parliamentary 
law,  that  nothing  shall  be  allowed  to  contravene  the  evident  will  of  the 
house,  regularly  ascertained  by  a  formal  vote.  If  a  lawful  vote  be  taken 
on  any  subject,  for  all  the  purposes  of  the  body's  own  government,  at 
least,  that,  which  the  majority  of  those  who  vote  sanction,  is  obligatory 
upon  all  the  members.  This  is  the  case  as  regards  every  question  law- 
fully put  and  lawfully  carried  by  the  actual  vote  of  the  house,  and  there 
can  be  no  injustice  in  the  rule.  Members  cannot  be  permitted  to  sit  still, 
without  voting,  when  a  question  is  proposed,  or  to  make  a  noise  when 
they  ought  to  be  attending  to  the  question,  and  then  to  determine  for 
themselves  the  will  of  the  house,  from  some  other  evidence  than  the  ac- 
tual votes  cast.  This  would  put  the  business  of  every  Assembly  into  con- 
stant and  inextrjcable  confusion.  In  the  present  case  there  was  no  injus- 
tice done  to  any  man  by  our  proceedings  :  The  body  that  met  in  the  First 
Presbyterian  Church  excluded  no  one.  The  whole  roll  of  the  Assembly, 
including  the  names  of  all  the  commissioners  both  Old-school  and  New, 
both  those  who  left  the  church  in  Ranstcad  Court,  and  those  who  re- 
mained, was  called  every  morning.  Our  doors  and  our  hearts  were  con- 
tinually open  to  receive  back  those  who  had  seceded  from  us.  We  ex- 
cluded none:  indeed  we  had  no  right  to  exclude  any  body.  We  attempt- 
ed no  such  thing. 

Was  Mr,  Cleaveland's  question  properly  put :  did  it  properly  come  be- 
fore the  house?  I  have  already,  I  think,  shown  conclusively  that  it  was 
a  lawful  question.  Now  let  us  see  whether  it  was  not,  as  to  the  mere 
manner,  lawfully  put  and  lawfully  carried.  Mr.  Cleaveland  was  a  recog- 
nised member  of  the  house,  as  were  also  Dr.  Patton  and  Dr,  Mason.  All 
these  gentlemen  had  been  recognised  as  members  by  Dr,  Elliott  himself, 
for  their  names  were  upon  the  roll  reported  by  the  clerks,  Mr,  Cleave- 
land, upon  the  final  act  of  the  Moderator,  by  which  Mr,  Squier  had  been 
annihilated,  commenced  a  very  civil  statement  of  the  difficulty  in  which 
the  house  had  been  placed  by  the  misconduct  of  its  officers;  but  used  no 
harsh  expression,  applied  no  reproachful  epithets  to  his  brethren,  and 
made  no  remarks  upon  the  madness  of  any  of  them.  He  merely  stated, 
that,  as  it  was  obvious  that  the  regular  and  lawful  organization  of  the  As- 
sembly could  not  proceed  under  the  present  Moderator,  and  clerks,  as  they 
had  been  advised  by^eounsel  learned  in  the  law  that  it  must  be  organized 


268  PRESBYTERIAN  CHURCH  CASE, 

at  that  time  and  place,  therefore  he  proposed  a  change  of  officers,  and  that 
Dr.  Beman  should  be  Moderator.  Now  here  came  the  pinch:  was  the 
Assembly  prepared  by  a  fair  vote,  to  sanction  the  proceedings  of  the  As- 
sembly of  1S37,  and  the  conduct  of  the  Moderator  and  clerks,  who  were 
evidently  lending  themselves  to  carry  out  those  proceedings?  I  am  hap- 
py to  say,  that  the  majority  of  the  house,  judged  of  by  the  actual  vote, 
were  not  prepared  to  give  their  countenance  to  such  proceedings  and  such 
conduct.  It  was  honourable  to  both  their  heads  and  hearts,  that  they  did 
refuse  to  give  them  their  sanction.  The  same  feeling,  however,  did  not 
prevail  with  all  the  members;  and  I  am  very  sorry  to  perceive  that  the 
malecontents  were  disposed  to  cast  a  slur  on  our  profession.  It  seems 
that  as  soon  the  words,  /'  counsel  learned  in  the  law"  were  uttered,  a 
tremendous  uproar  broke  out  instantaneously  from  the  south-west  corner 
of  the  house,  where  the  Old-school  members  were  packed.  I  do  not, 
however,  pretend  to  conjecture,  whether  these  reverend  gentlemen  meant 
to  express  their  contempt  for  our  profession,  or  theirdetermination  not  to 
be  subject  to  the  law  itself.  I  cannot  tell.  But  certainly  at  those  words 
the  uproar  commenced.  The  hammer  of  the  Moderator  and  his  tongue 
led  the  way,  and  at  that  unpropitious  moment  the  members  of  the  Old- 
school  were  seized  with  a  universal  and  most  afflictive  asthma.  It  has 
been  said  that  there  was  no  legislative  coughing;  that  if  any  coughed,  it 
must  have  been  from  disease.  Well,  if  there  was  any  epidemic  disease, 
perhaps  it  had  been  engendered  at  an  earlier  period  of  the  proceedings, 
at  the  time  when  Dr.  Elliott  and  Mr.  Squier  were  engaged,  by  the  chok- 
ing fumes  of  imaginary  brimstone.  Mr.  Lowrie  heard  no  legislative 
cough.  Mr.  Lowrie,  however,  has  been  accustomed  to  legislative  cough- 
ing from  more  practiced  hands — from  the  members  of  the  House  of  Re- 
presentatives at  Washington.  There  was  not  here  such  a  deluge  of  asth- 
matic sounds  as  that  which  overwhelmed  Mr.  Flood  in  the  British  House 
of  Commons;  who  said,  when  he  was  put  down  by  the  simultaneous 
coughing  of  full  two  hundred  members,  that  gentleman  might  cough  in 
that  house  as  much  as  their  infirmity  required;  but  that  if  on  the  street 
the  most  afflicted  of  them  dared  but  to  wheeze  in  his  hearing,  he  should 
call  him  to  account.  These  reverend  gentlemen  were  practising  that  day 
probably  for  the  first  time  ;  and  they  were  as  yet  a  very  awkward  squad, 
though  they  had  been  preparing  themselves  ever  since  nine  o'clock  that 
morning,  in  the  presence  of  the  surgeon-general  of  the  forces,  who  was 
there  doubtless  to  explain  the  mechanism  and  most  advantageous  use  of 
each  part  of  the  organs  of  the  throat.  I  think  however,  that  from  the 
testimony,  it  appears  to  have  been  very  fair  for  a  first  effiart,  and  shows 
that  they  would  soon  have  rivalled  the  most  veteran  legislative  asthmatics. 
Certainly  they  succeeded  by  their  coughs,  in  preventing  themselves  from 
voting  on  Mr.  Cleaveland's  motion. 

Never  was  a  disease  more  unfortunate  and  unseasonable.  Dr.  Patton 
and  Dr.  Mason  had  been  declared  out  of  time,  but  this  was  certainly 
much  more  out  of  time.  While  the  Old-school  were  struggling  in  the 
agony  of  their  pulmonary  complaint,  Mr.  Cleaveland's  motion  was  put 
and  carried,  settling  the  question  where,  for  the  future,  these  afflicted 
gentlemen  should  be  permitted  to  cough.  From  Dr.  Elliott,  Mr.  Plumer, 
a  gentleman  who  sat  in  the  south-west  corner  of  the  house,  and  from  the 
Episcopalian— the  only  representative  of  that  denomination  examined, 


MR.  MEREDITH'S  ARGUMENT.  269 

you  have  learned  that  there  were  ten  or  a  dozen  distinct  noes  coming 
from  the  south-western  portion  of  the  Assembly;  and  this  fact  clearly 
demonstrates  two  things — first,  that  the  question  put  was  distinctly  and 
audibly  stated,  the  object  being  clearly  made  known;  and  secondly,  that 
it  was  put  to  the  whole  Assembly,  and  that  so  the  Old-school  members 
understood  it  to  be  put.  The  motion  made  was  that  Dr.  Beman  should 
be  Moderator,  or  should  take  the  chair:  the  present  case  does  not  de- 
pend upon  the  question,  which  are  the  exact  terms  that  he  employed; 
and  it  is  conclusively  established  that  the  question  was  put  distinctly,  and 
■so  that  it  could  be  heard  by  all,  who  were  not  making  a  noise  on  purpose 
to  prevent  themselves  from  hearing.  The  other  witnesses  of  the  Old- 
school  party  say  that  there  was  a  general  "aye!"  but  that  there  were 
ftot  any  noes.  I  cannot  tell  why  they  did  not  hear  the  noes:  possibly 
they  were  at  the  time  busily  occupied  in  coughing.  The  greater  num- 
ber of  the  gentlemen  examined  certainly  concur  in  the  statement,  that 
there  were  a  few  scattering  noes.  These  facts  I  collect  from  the  witnesses 
all  round. 

There  can  be  no  question  that  Mr.  Cleaveland's  motion,  proposing  to 
try  the  sense  of  the  house  upon  the  conduct  of  the  Moderator  and  clerks, 
was  a  perfectly  lawful  motion:  else  must  the  Moderator  have  continued 
to  preside  until  he  saw  fit  to  allow  a  new  Moderator  to  be  chosen.  Nor 
can  it  be  doubted  that  the  question  was  intelligible,  and  was  put  audibly. 
But,  say  our  opponents,  in  the  first  place,  it  was  not  lawfully  put:  Mr. 
Cleaveland  had  no  authority  to  put  it  himself.  Why,  gentlemen,  if  he 
had  waited  till  Dr.  Elliott  would  put  it,  he  would  have  been  waiting  there 
yet.  He  did  not  wish,  and  I  am  sure  I  should  not  have  liked,  to  pro- 
pound such  a  motion  to  Dr.  Elliott.  If  his  language  to  Mr.  Squier  was 
so  terrible,  what  must  have  been  his  language  to  one,  who  should  have 
dared  to  propose  that  he  should  have  given  up  his  seat  to  another.  If 
there  was  any  mystical  force  in  that  little  hammer,  I  think  the  man  hardy 
enough  to  make  such  a  motion  would  have  felt  it.  Luckily,  however,  it 
falls  into  this  case,  that  Mr.  Cleaveland's  proceeding  was  supported  by 
precedent — we  are  not  without  a  direct  authority  for  our  measures.  This 
we  derive  from  the  Assembly  of  1835.  At  the  commencement  of  its 
sessions,  Dr.  Beman  took  the  chair,  and  presided  for  some  little  time;  but 
it  became  necessary  to  make  a  motion  to  put  him  out  of  office.  This 
motion  was  to  the  same  effect  as  that  made  by  Mr  Cleaveland,  though  re- 
ceived by  both  Dr.  Beman  and  his  friends,  in  a  temper  very  different 
from  that  manifested  by  Dr.  Elliott  and  the  Old-school  party  in  1838. 
The  minutes  of  1835  are  not  at  hand:  I  will  refer  to  them  hereafter. 
When  that  motion  was  made,  it  was  put,  not  by  Dr.  Beman,  but  by  a 
third  person,  a  simple  member  of  the  body.  Indeed  it  is  the  universal 
custom  of  all  deliberative  bodies  in  this  country,  and  of  this  very  Assem- 
bly, that  when  a  motion,  touching  personally  the  Speaker  himself,  is 
made,  it  be  not  put  by  the  Speaker,  but  by  some  member. 

Mr.  Hubbell.  In  1835  the  question  in  regard  to  Dr.  Beman  was  put 
by  the  Stated  Clerk,  Dr.  Ely. 

Mr.  Meredith.  I  was  not  aware  that  Dr.  Ely  was  the  Stated  Clerk  ; 
but  you  will  see  that  he  was  a  member  also  ;  and  it  was  in  his  capacity 
of  member  that  he  put  the  question.  But  suppose  he  put  it  as  clerk  : 
why  that  makes  my  argument  still  stronger.     A  clerk  is  certainly  inferior 


270  PRESBYTERIAN  CHURCH  CASE. 

to  a  member.  Will  )'ou  let  a  footman  do  what  his  master  cannot  do  ? 
It  is,  at  least,  a  little  extraordinary  that  a  proceeding  which  was  perfectly- 
proper  when  Dr.  Beman  was  to  be  put  out  of  the  chair,  should  be  en- 
tirely improper  when  he  was  to  be  put  in  the  chair  ;  that  because  he  was 
to  be  put  in,  it  was  not  lawful  for  the  motion  to  be  made  until  Dr.  Elliott 
chose  to  entertain  it,  which  I  presume  would  have  been  never  at  all. 
He  would  have  held  the  chair  as  long  as  he  thought  proper. 

Well  then,  the  question  was  lawfully  put  by  Mr.  Cleaveland,  and  it  was 
put  audibly.  I  cannot  say  whether  he  had  taken  advice  of  "  counsel 
learned  in  the  law"  during  the  previous  year;  but  if  he  had,  certainly 
that  was  no  fault.  I  apprehend  that  it  is  no  offence  against  the  divine 
law,  for  men  to  seek  such  information  as  will  enable  them  to  keep  within 
the  rules  of  human  law,  and  to  preserve  their  own  rights.  The  question 
then  was  put,  and  that  by  a  person  who  had  a  right  to  put  it.  Moreover 
it  was  carried:  there  can  be  no  doubt  of  this,  regard  being  had  to  those 
only  who  actually  voted.  But  it  is  said  that  the  question  was  not  re- 
versed. Now,  in  the  first  place,  it  is  the  undoubted  parliamentary  law — 
it  has  been  so  considered  in  the  British  House  of  Commons  for  at  least 
one  thousand  years — that  where  there  is  but  one  candidate  nominated  for 
any  office,  the  reverse  of  the  question  need  never  be  put.  If  there  be  but 
one,  he  is  immediately  led  to  the  chair.  True,  it  is  said  that  here  two 
persons  were  in  nomination  :  one  nominated  by  Mr.  Cleaveland,  the  other 
already  in  the  chair,  and  entitled  to  hold  it  until  the  question  had  been 
put  upon  his  removal.  Why,  if  it  had  been  necessary  that  such  a  ques- 
tion should  be  put,  and  that  Dr.  Elliott  should  himself  put  it,  before  he 
could  be  removed  from  his  place,  he  would  have  sat  there  so  long,  that 
like  the  man  in  the  farce  of  Aristophanes,  on  attempting  to  rise,  he  would 
have  left  his  sitting  part  behind.  You  can  hardly  say  that  Dr.  Elliott  had 
been  nominated.  But  let  us  throw  away  parliamentary  rules  or  usages,  and 
admit  that  Dr.  Elliott  could  be  deprived,  only  by  a  vote  of  the  house — 
not  of  his  hammer,  not  of  his  three-legged  stool,  but  of  his  office.  Was 
not  the  question  reversed  ?  This  is  the  point  to  which  at  last  our  opponents 
are  driven ;  and  if  from  the  testimony  we  can  show  that  it  was  reversed, 
your  verdict  must  be  for  the  relators.  The  very  existence,  then,  of  the 
whole  Presbyterian  Church  depends  on  this  one  little  question:  was  the 
negative  put  on  Mr.  Cleaveland's  motion  .-*  Did  he  say,  "  Those  of  the 
contrary  opinion  will  please  to  say,  no?"  Now  from  twenty  to  thirty 
witnesses  in  all  have  been  examined  on  our  side  in  regard  to  this  matter, 
and  every  one  declares  that  the  question  was  reversed,  and  many  of 
them  give  their  reasons  for  remembering  that  it  was.  They  heard  the 
reversal  distinctly,  and,  most  of  them,  votes  in  the  negative,  and  their 
testimony  puts  the  matter  beyond  the  reach  of  doubt.  All  the  other 
witnesses — I  shall  not  trouble  you  with  an  examination  of  each  one's 
testimony — all  the  others  swear  that  they  did  not  hear  the  question 
reversed,  though  most  of  them  heard  the  motion  and  understood  its  pur- 
port. With  different  classes  of  these  witnesses  different  causes  operated 
to  prevent  hearing.  One  gentleman  who  could  most  probably  have 
decided  this  point,  Dr.  McDowell,  was  not  examined  in  regard  to  it, 
though  called  upon  the  stand.  I  have  made  a  rough  list  of  the  witnesses 
who  have  testified  as  to  this  matter,  and  find,  that  against  about  fifteen  on 
our  side,  who  swear  that  the  question  was  reversed,  there  are  about  three- 


MR.  MEREDITH'S  ARGUMENT.  271 

and-twenty  of  the  Old-school,  who  swear  that  they  did  not  hear  any 
reversal.  Now,  of  these  latter  there  are  several  classes.  Some,  like  Dr. 
Elliott,  were  calling  to  order,  and  were,  besides,  too  much  excited  to 
hear  distinctly.  Others  had  their  attention  distracted,  partly  by  the  busi- 
ness that  some  of  the  Old-school  were  pretending  to  transact,  and  partly 
by  the  noise  and  confusion.  Some  who  expected  to  hear  the  reversal,  as 
a  matter  of  course,  but  who  did  not  intend  to  vote  upon  the  question,  per- 
haps paid  little  attention  to  the  proceeding.  Another  class,  who  were 
doubtless  looking  for  absurd  motions,  thought  that  Mr.  Cleaveland  pro- 
j)osed  a  new  body,  turning  the  words  "new  Moderator"  into  "new 
body,"  by  the  help  of  a  little  imagination.  Others  seem  to  have  been 
engaged  in  their  own  private  disputes,  or  were  remonstrating  with  those 
who  got  up  on  the  seats  of  the  pews.  But  in  regard  to  this  testimony,  it 
is  enough  to  mention  one  plain  principle  of  the  common  law  and  of  com- 
mon sense.  There  are  sixteen  witnesses  of  the  most  respectable  charac- 
ter, who  were  located  in  distant  parts  of  the  house,  and  swear  positively 
that  they  heard  the  reversal.  Certainly  our  witnesses  are  fairly  in  for  it 
on  this  question.  Any  one  who  says,  when  asked  if  the  negative  was 
put,  that  he  knows  it  was,  if  it  was  not  put,  must  have  wilfully  forsworn 
himself.  On  the  other  side  there  is  an  equal  or  a  greater  number;  but 
they  say  only,  that  they  did  not  hear  any  reversal.  One  or  two  of  them — 
I  believe  they  were  not  ministers — have  ventured  to  declare  that  they 
know  the  negative  was  not  put,  for  that  they  must  have  heard  it  if  it  had 
been.  Their  error  may  be  accounted  for  by  reference  to  the  confusion 
that  prevailed.  Now  it  is  a  general  rule  of  evidence,  that  if  one  respecta- 
ble witness  swears  positively  that  he  saw  or  heard  a  particular  thing,  his 
account  is  to  be  taken  in  preference  to  those  of  five  hundred  others,  who 
can  testify  merely  that  they  did  not  see  or  hear  it.  In  the  former  ease 
you  are  to  judge,  not  of  the  probability  of  the  thing's  existence,  but  merely 
of  the  witness's  good  faith.  Where  there  is  no  doubt  of  a  person's  cre- 
dibility, there  can  be  none  of  a  positive  fact  to  which  he  directly  swears. 
But  in  the  next  place,  we  should  consider  what  this  thing  was  which 
escaped  the  senses  of  so  many  persons.  Was  it  a  very  extraordinary 
thing,  one  not  before  heard  of,  like  the  stamping  and  scraping,  and  cough- 
ing to  which  several  persons  have  testified,  or  the  words  "  counsel  learned 
in  the  law,"  which  I  believe  were  heard  by  every  witness?  Far  from  it: 
it  was  a  regular  and  ordinary  matter,  which  every  person  must  have 
expected  to  take  place.  Our  attention  is  engaged  and  fixed  upon  an  object, 
on  one  of  two  principles:  either  that  we  desire  to  apply  ourselves,  and 
to  learn  something,  or  that  the  nature  of  the  object  itself  is  remarkable. 
If  a  proceeding  be  a  very  common  one;  and  we  think  that  it  is  in  the 
hands  of  persons  capable  of  conducting  it  regularly,  we  are  very  apt  not 
to  attend  to  its  details.  If  any  of  you  belong  to  a  club  or  debating  soci- 
ety, and  were  now  asked  whether  you  heard  the  question  reversed,  on  any 
particular  motion  made  at  its  last  meeting,  most  of  you  could  perhaps 
hardly  swear  to  the  reversal,  though  it  had  been  reversed.  Expressions 
that  have  become  common,  which  are  always  expected,  as  a  matter  of 
course,  to  occur  at  a  particular  time  and  place,  lose  their  effect.  So  well 
is  this  matter  understood  by  the  members  of  the  Presbyterian  Church, 
that  they  repudiate  all  written  forms  of  prayer;  certainly  not  supposing 
that  extemporaneous  pj:ayers  can  be  better  than  written  ones;  but  having 


272  PRESBYTERIAN  CHURCH  CASE. 

observed  that  tlie  power  of  attention  is  in  a  measure  lost,  after  a  thing  has 
become  habitual,  and  is  expected  always  to  follow  in  a  certain  order.  The 
clock  above  us,  gentlemen,  has  struck  eleven  since  you  have  been  sitting 
here  this  morning — I  wish  it  had  not  yet  struck — yet  very  few  of  you, 
sitting  in  that  jury  box,  have  noted  the  sound.  Perhaps  some  who  do 
not  reside  in  Philadelphia  may  have  heard  it.  The  reason  is  that  they  do 
not  hear  every  day  and  every  hour  the  tone  of  that  tremendous  bell,  that 
echoes  through  the  county  for  miles  around.  Those  who  are  accustomed 
to  the  sound  ringing  in  their  ears  from  hour  to  hour  seldom  notice  it. 
Why,  if  it  was  a  strange  thing  to  them,  they  could  not  sleep  at  night. 
Now  the  practice  of  reversing  questions  was  so  familiar  to  all  present, 
was  regarded  as  so  much  a  matter  of  course — for  most  of  these  individuals 
had  been  in  other  Assemblies,  and  had  attended  the  meetings  of  Synods 
and  Presbyteries — that  they  confidently  expected  a  reversal,  and  therefore 
did  not  listen  particularly.  We  have  shown  circumstances  enabling  our 
witnesses  to  recollect  positively  in  regard  to  this  matter.  Hovi^  many  of 
you,  gentlemen,  who  heard  the  crier  open  the  court  this  morning,  can 
now  swear  to  the  fact?  How  many  of  you  can  go  back  over  all  the  time 
that  we  have  been  engaged  in  this  cause,  and  declare  on  oath  that  you 
have  heard  him  open  the  court  every  day.  Very  few  of  you  perhaps 
could  say  that  you  did  hear  it:  I  hope  none  of  you  would  swear  that  the 
thing  did  not  happen. 

I  wonder,  indeed,  that  any  of  the  gentlemen  of  the  Old-school  heard 
any  thing  at  all;  for  they  were  not  endeavouring  to  hear.  They  soughs 
to  bolster  up  their  own  disorderly  proceedings,  by  treating  those  of  the 
opposite  party  as  a  disorder.  At  last,  as  a  forlorn  hope,  they  may  have 
determined  not  to  hear.  During  a  part  of  the  time,  indeed,  something 
else  was  going  on  in  the  part  of  the  house  occupied  by  Mr.  Krebs,  Dr. 
Elliott,  and  their  friends;  and  there  was  great  excitement  and  much 
noise.  I  hope  that  this  noise  did  not  come  from  the  New-school:  I  do 
not  believe  that  they  were  guilty  of  such  a  parricidal,  or  rather  suicidal, 
offence.  It  was  not  they  that  were  troubled  with  such  on  asthma,  as  to 
make  the  attendance  of  a  medical  ruling  elder  necessary.  They  did  not 
subject  themselves  to  rebuke  for  indecorous  conduct — behaviour  unbe- 
coming ministers  of  the  Gospel.  But  it  is  not  enough. to  say  there 
was  a  great  deal  of  racket  in  the  church — though,  first,  it  appears  that 
there  was  so  much  that  the  motion  was  not  heard;  and  then  so  little,  that 
all  could  hear  that  the  question  was  not  reversed — not  enough  to  say  that 
ladies  were  rising  up,  that  there  was  a  clapping  of  hands  and  a  rustling  of 
silk  dresses.  The  stentorian  voice  of  Mr.  Cleaveland  could  hardly 
be  drowned  by  the  noises  which  were  vibrating  through  the  hall,  or  by 
the  slight  rustling  of  heretical  petticoats  in  the  galleries — for  it  seems  that 
the  ladies  are  on  our  side.  I  feel  rather  proud  of  their  favour,  though 
they  are  not  subject  to  any  tribunal,  and  suffer  no  appeal  from  their  deci- 
sion, in  which  respect  they  are  rigid  Congregationalists. 

One  of  the  Old-school  witnesses,  a  gentleman  from  Princeton,  says  can- 
didly, that  these  noises  came  most  likely  from  those  whose  interest  it  was 
to  make  them — those  who  did  not  desire  that  the  questions  should  be 
heard.  All  the  witnesses  on  that  side  were  asked,  "  Was  the  ques- 
tion reversed?"  The  universal  answer  was,  "  I  did  not  hear  it  reversed." 
But  we  have  the  direct  and  positive  testimony  of  witnesses  on  the  other 


MR.  MEREDITH'S  ARGUMENT. 


S73 


side  who  did  hear  it.  And  several  of  them  have  told  us  of  circumstances 
that  particularly  fixed  their  attention,  and  impressed  their  memory.  They 
were  very  anxious  as  to  the  result  of  the  vote :  they  feared  that  the  ques- 
tion would  be  voted  down.  They  therefore  listened  with  great  solicitude 
to  the  reversal,  and  were  exceedingly  gratified  to  hear  no  more  negatives. 
Mr.  Lathrop  voted  himself  in  the  negative — a  fact  which,  while  it  proves 
conclusively  the  reversal  of  the  question,  shows  the  want  of  concert 
among  the  members  of  the  New-school.  He  says  the  rest  of  the  noes 
came  from  the  south-west  portion  of  the  house.  Those  who  made  the 
noise  then,  and  prevented  themselves  from  hearing,  are  plainly  responsi- 
ble for  that  noise.  I  ask  that  your  Honour  should  charge  this  jury,  as  a 
point  of  law,  that  if  the  Old-school  created  the  disturbance,  they  must  suf- 
fer by  it;  and  that  in  such  case,  it  being  proved  that  the  proposition  was 
put,  it  will  avail  them  nothing  to  show  that  they  did  not  hear  the  ques- 
tion, or  the  reversal. 

I  said  that  I  would  not  cite  any  authorities  in  the  course  of  my  argu- 
ment, but  a  case  in  point  occurs  to  me — the  case  of  Rex  vs.  Foxcroft^ 
more  usually  called  Oldknow  vs.  Wainwright,  found  in  2  Burrowes, 
1017.  That  was  a  case  where  a  majority  of  the  electors  had  not  only  re- 
fused to  vote,  but  had  made  a  formal,  written  protest  against  the  election. 
They  could  not  say  however  that  the  question  had  not  been  lawfully  put, 
and  Lord  Mansfield  decided  that  they  should  have  voted  against  the  can- 
didate; that  in  that  way  only  could  they  oppose  the  election. 

Do  you  believe  that  any  one  of  these  gentlemen  can  say  in  candor,  that 
he  intended  to  vote;  that  if  he  had  heard  the  reverse  put  he  would  have 
voted  no?  Dr.  Wilson,  I  think  it  was,  who  told  us  very  frankly,  and 
without  reflection,  that  he  was  sure  he  could  not  have  heard  even  if  he 
had  endeavoured  to  hear.  They  did  not  try  to  hear;  they  did  not  intend 
to  take  any  part  in  the  proceedings ;  it  was  their  plan  not  to  vote.  They 
had  determined  to  regard  the  whole  of  the  measures  of  the  New-school 
as  a  disorder,  as  entirely  void  in  law.  Therefore  though  they  might  have 
heard  Mr.  Cleaveland's  motion,  and  might  have  heard  the  question  re- 
versed, they  preferred  not  to  hear;  and  Dr.  Elliott  went  so  far  as  to  enter- 
tain a  motion  made  while  Mr.  Cleaveland's  was  pending,  and  just  as  he 
was  slipping  oflf  of  his  chair.  This  reminds  me  of  the  prayer  of  the  car- 
penter, who  when  rolling  ofi'of  the  roof,  began  very  appropriately  to  say, 
"Now  I  lay  me  down  to  sleep." 

No  wonder  they  could  not  hear:  I  only  wonder  that  they  heard  so 
much  as  they  did.  The  most  of  them  have  told  us  that  they  heard  dis- 
tinctly Mr.  Cleaveland's  motion,  and  the  vote  in  the  affirmative.  Of  the 
whole  Old-school  party,  the  three  who  were  placed  in  the  position  most 
advantageous  for  hearing,  were  Dr.  Elliott,  Mr.  Krebs,  and  Dr.  McDow- 
ell. Mr,  Krebs  was  the  most  active  of  the  three,  being  the  junior  of  the 
others,  but  his  attention  was  occupied  with  the  roll,  the  motion  for  the  ap- 
pointment of  a  Committee  of  Elections,  and  the  application  of  a  member, 
Mr.  Moore,  to  have  his  commission  examined.  I  see  that  this  was  the 
case  from  the  Minutes,  and  their  testimony  does  not  vary  from  Mr.  Krebs's 
own  statement.  But  why  was  not  Dr.  McDowell  examined,  in  regard  to 
this  point,  when  he  occupied  such  a  commanding  position,  and  was  here 
on  the  stand  several  times?  I  am  sure  I  do  not  know  why;  but  I 
should  be  very  glad  to  Jtnow  whether  he  was.  as  deaf  as  the  rest. 

35 


274  PRESBYTERIAN  CHURCH  CASE. 

You  can  judge  only  by  the  actual  vote,  whether  the  question  was  law- 
fully carried  ;  and  if  any  confidence  is  to  be  placed  in  human  testimony; 
if  there  is  faith  in  those  whose  sacred  character  we  have  all  been  taught 
to  venerate,  you  must  believe  that  a  large  majority  voted  in  the  affirma- 
tive. But  mark,  there  was  no  division  called  for.  The  Old-school  party 
chose  to  consider  the  whole  proceeding  a  disorder  and  a  rebellion.  They 
wished  to  put  the  Assembly  itself  at  the  feet  of  the  Moderator  of  the 
preceding  year.  Where  was  there  one  who  called  for  a  division — the 
only  orderly  method  of  testing  the  majority,  when  there  exists  a  doubt 
of  the  manner  in  which  a  question  has  been  decided  ?  No  man  objected 
at  the  time.  Even  if  the  question  was  not  reversed,  all  the  members  of 
the  Old-school,  excepting  those  who  were  making  a  noise,  assented  by 
their  silence  :  they  acquiesced,  and  suffered  the  motion  to  be  carried. 
But,  further,  in  point  of  fact,  the  question  was  reversed.  They,  the  de- 
feated party,  heard  it  reversed,  and  uttered  a  few  scattering  noes.  They 
knew  that  they  were  the  defeated  party,  and  were  silent :  they  sat,  as 
one  of  the  witnesses  has  told  you,  in  mute  amazement.  But  as  soon  as 
the  New-school  had  gone  off  with  a  proclamation  of  the  adjournment, 
they  began  to  recover  the  use  of  their  senses,  and  to  cast  about  for  some 
means  of  relief.  They  begin  to  ask, ''  Didn't  some  ladies  in  the  gallery 
vote?  Didn't  some  of  the  commissioners  from  the  exscinded  Presby- 
teries vote?"  Suppose  they  did  vote  :  I  do  not  care.  If  a  majority  of 
those  entitled  to  vote,  iind  who  actually  voted,  voted  in  the  affirmative, 
the  motion  was  lawfully  carried  :  a  few  ayes  or  noes  from  persons  not 
members  could  not  invalidate  the  whole  proceeding.  The}^  were  the  de- 
feated party,  and  felt  that  they  were;  but  affecting  to  believe  that  they  were 
really  triumphant,  they  made  use  of  such  charitable  expressions  as  that 
given  in  evidence  :  "  Whom  God  wishes  to  destroy,  he  first  makes  mad." 
Their  acts  show  that  they  felt  themselves  defeated.  They  immediately 
began  to  look  about  for  circumstances  that  would  excuse  their  not  voting, 
and  invalidate  the  vote  of  their  opponents,  like  the  Sabines,  who,  when 
all  human  means  had  failed,  imagined  that  they  saw  Castor  and  Pollux 
coming  to  their  assistance.  Dr.  Beecher,  they  were  told,  had  uttered  an 
aye  which  might  have  been  heard  across  Washington  Square  ;  and  Mr. 
Duffield  who  was  not  accustomed  to  carry  a  cane,  had  struck  his  cane 
upon  the  seat,  and  exclaimed,  "That  was  done  according  to  law,  as  slick 
as  could  be."  These  things  are  better  calculated  to  excite  laughter  than 
to  increase  our  respect  for  those  who  gravely  urge  them.  They  were  all 
phantoms  of  the  imagination— mere  apparitions.  None  of  you,  gentlemen, 
can  for  a  moment  believe  in  such  spectres.  It  was  a  time  of  great  ex- 
citement, and  it  is  not  wonderful  that  the  senses  of  some  should  have 
been  deceived  ;  that  one  person  should  have  fancied  that  Mr.  Duffield 
carried  a  cane,  which  he  had  never  carried  before,  and  has  not  carried 
since;  and  that  he  used  language  which  certainly  never  came  from  his 
lips.     These  things  show  that  our  opponents  are  conscious  of  defeat. 

We,  gentlemen,  have  not  entered  into  any  devious  paths.  The  direct- 
ness and  simplicity  of  all  our  movements  differed  entirely  from  the  quirks 
and  quibbles  of  our  opponents  about  points  of  order.  They  say,  "  We 
called  you  to  order;  the  Moderator  of  the  last  year  is  the  germinating 
root  of  the  new  Assembly,  and  presides  sui  juris  in  its  organization. 
You  can't  form  a  house  without  his  assistance;  of  this  perhaps  you  have 


MR.  MEREDITH'S  ARGUMENT.  275 

not  been  advised  by  your  learned  counsel.  You  must  observe  the  old 
law  which  provides  that  each  Moderator  shall  read  a  certain  set  of  rules 
to  his  successor,  on  declaring  him  elected,"  and  so  forth.  But  we  were 
not  skilled  in  parliamentary  manoeuvres.  With  directness  of  purpose,  and 
in  the  simplicity  of  our  hearts,  we  went  forward — we  are  not  ashamed  to 
say  it — we  went  forward  to  effect  a  legal  organization.  This  directness 
of  proceeding,  this  very  want  of  skill,  as  awkwardness  sometimes  foils  the 
most  expert  swordsman,  was  perhaps  the  cause  of  our  success.  Powerless 
and  defenceless  as  to  all  human  means,  we  were  sustained  and  borne  on- 
vvard  by  that  power  which  is  usually  manifested  in  the  hour  of  man's 
most  deplorable  weakness. 

Gentleman,  I  have  now  gone  through  with  the  remarks  which  I  have 
■thought  it  proper  to  make  in  this  case.  It  is  not  necessary  that  I  should 
further  try  your  patience  by  stopping  to  consider  the  various  minor  points 
which  it  presents.  There  is  nothing  at  all  in  the  mystical  hammer,  about 
which  so  much  has  been  said.  The  old  officers,  I  have  shown  you,  were 
lawfully  displaced;  an  adjournment  was  lawfully  voted;  we  proceeded  to 
the  First  Church,  and  all  the  commissioners  were  invited  to  attend;  our 
doors  were  always  open,  and  every  one  that  chose  remained  a  member  of 
the  General  Assembly.  We  proceeded  in  a  legal  manner  to  the  election 
of  trustees,  and  those  trustees  are  the  relators. 

I  hope — sincerely  hope,  that  the  end  of  this  proceeding  will  be  peace: 
such  is  the  fervent  desire  and  prayer  of  my  clients.  They  wish  that  the 
two  portions  of  the  General  Assembly,  now  separated,  may  again  come 
together — that  union,  harmony,  and  love  may  again  prevail.  That  losing 
sight  of  all  sinister  objects,  and  no  more  breathing  the  spirit  of  discord 
and  war,  as  brethren  we  may  be  joined  together  in  heavenly  communion. 
That  none  may  hereafter  come  up  to  the  Assemblies  of  the  Church,  with 
any  mental  reservation,  any  secret  design  to  expel  a  portion  of  their  fel- 
lows; that  each  may  be  greeted  with  the  kiss  of  peace,  and  the  Christian 
salutation,  "  Is  it  well  with  thee  my  brother?" 

If  unfortunately  I  have  been  bitten  by  the  angrier  part  of  the  spirit  of 
this  controversy,  and  have  spoken  a  single  word  harshly  or  unkindly, 
those  who  know  me  must  know,  that  it  has  not  been  an  intentional 
offence. 


276 


MR.  PRESTON'S  ARGUMENT. 


May  it  please  your  Honour — Gentlemen  of  the  Jury: — It  is  a  per- 
sonal misfortune  to  me,  that  I  come  to  the  performance  of  my  part  in  this 
case,  exhausted  by  forty-eight  hours  of  severe  indisposition,  and  labour- 
ing under  great  debility.  I  would  beg  the  indulgence  of  the  court  and 
jury,  did  I  not  feel  that,  if  I  have  any  strength  remaining,  I  should  ex- 
pend that,  before  trespassing  further  upon  your  patience,  which  must  al- 
ready be  well  nigh  exhausted,  I  regret  this  as  a  personal  misfortune, 
merely,  not  as  likely  to  affect,  much  less  to  endanger  the  cause  of  my 
clients;  for  I  may  say,  with  all  candour,  that  after  having  heard  every- 
thing which  has  hitherto  been  urged  by  our  opponents,  I  feel  convinced, 
that  the  complete  vindication  of  those  whom  we  represent  will  require 
from  us  but  a  very  little  expenditure  of  either  zeal  or  talent.  Unques- 
tionably, the  whole  of  this  proceeding  has  been  conducted,  on  the  part  of 
our  learned  friends  on  the  opposite  side,  with  signal  ability.  We  all 
must  have  been  both  entertained  and  instructed  by  the  luminous  and 
able  opening  of  the  honourable  gentleman,  to  whom  on  Saturday,  and  to- 
day, we  have  listened.  But,  notwithstanding  the  ability  and  learning 
which  he  has  brought  to  the  aid  of  his  cause,  and  nowithstanding  the  ac- 
cidental increase  of  my  own  incapacity,  I  do  not  feel  a  whit  daunted:  I 
am  still  unshaken  in  my  confidence,  that  your  verdict  will  be  in  favour  of 
the  defendants,  and  will  restore  to  the  Presbyterian  Church  that  peace, 
which,  without  such  a  verdict,  it  is  vain  to  expect. 

The  learned  counsel  have,  perhaps,  in  nothing  else,  so  clearly, illustrat- 
ed their  ability  and  zeal,  as  in  the  general  course  which  they  have  pur- 
sued in  the  opening  of  their  case,  the  development  of  their  testimony, 
and  the  disposition  of  their  argument.  They  have  devoted  the  greatest 
length  of  time  to  the  proceedings  of  the  Assembly  of  1837:  upon  these 
they  have  dwelt  with  the  greatest  stress  and  urgency.  In. the  opening 
of  the  case  to  the  jury,  these  occupied  two-thirds,  and  in  the  exhibition  of 
testimony,  three-fourths  of  the  time;  and  of  the  learned  gentleman's  ar- 
gument, from  four  to  five  hours — the  whole  of  Saturday — were  devoted 
to  this  part  of  the  case,  and  to  the  remaining  portion  he  has  given  but  the 
two  hours,  which  he  has  consumed  this  morning.  Yet  by  his  own  decla- 
ration, forced  from  him  by  the  necessity  of  the  case,  just  as  he  was  con- 
cluding his  argument  on  Saturday,  he  admitted,  that  as  yet  he  had  been 
occupied  with  preliminaries  alone,  promising  that  to-day  he  would  come 
to  the  merits  of  the  subject.  According,  then  to  his  own  calculation,  the 
preliminaries  of  the  case  are  to  its  real  merits,  as  five  to  two.  While  en- 
tertained, amused,  and  instructed,  by  perhaps  the  longest  exordium  that 
ever  adorned  an  argument,  we  looked  with  great  anxiety  to  the  impor- 
tance and  extent  of  what  was  to  follow.  But  we  have  found  the  whole 
speech  little  more  than  a  preliminary — that  on  which  the  counsel  has 
chiefly  relied  is  something  anterior  to  the  case.  The  structure  that  he  has 
reared  is  all  portico:  in  vain  we  look  for  the  substantial  fabric.     Feeling 


MR.  PRESTON'S  ARGUMENT.  377 

that  it  is  not  my  duty  to  imitate  the  learned  gentleman,  I  shall  not  con- 
sume your  time  in  a  long  exordium,  or  by  distant  approaches  to  the  sub- 
ject. To-day,  I  shall  direct  your  attention  to  nothing  but  its  real  merits. 
And  if  now  I  were  about  to  discuss  it  for  the  first  time,  I  should  feel  ex- 
onerated from  saying  a  single  word  in  reply  to  the  voluminous  argument, 
which  has  been  founded  on  the  proceedings  of  the  Assembly  of  1837, 
feeling  confident,  that  they  could  have  no  bearing  upon  your  decision  in 
regard  to  the  merits  of  the  case.  But  others  having  thought  differently,  at 
an  earlier  stage  of  this  cause  we  picked  up  the  gauntlet  thrown  down  by 
our  opponents,  and  promised  to  vindicate  those  proceedings.  We  shall, 
therefore,  advert  to  them  hereafter,  though  not  until  we  have  disposed  of 
the  more  important  matters,  on  which,  as  we  still  believe,  the  final  adju- 
dication of  the  court  and  jury  must  depend — the  proceedings  of  1838.  I 
will  take  up  the  subject  where  the  honourable  gentleman  left  off,  defer- 
ring to  my  peroration  all  that  has  furnished  matter  for  his  protracted  ex- 
ordium. His  plan  of  proceeding  has  reminded  me  of  some  able  general, 
who  after  heaping  up  piles  of  dust  which  the  wind  drove  directly  in  the 
enemy's  face,  commenced  his  attack  under  cover  of  the  cloud.  But  I 
think  that  the  dust  has  by  this  time  been  blown  away,  and  that  we  shall 
be  able  to  examine  clearly  the  true  merits  of  the  case. 

It  must  be  apparent,  gentlemen,  to  you  all,  that  the  counsel  for  the  re- 
lators have  entirely  failed  to  designate,  in  any  part  of  this  proceeding,  in 
the  whole  of  their  voluminous  testimony  and  argument,  a  single  distinct 
point,  on  which,  if  established,  they  can  rest  their  case,  unless  it  be  em- 
braced in  a  proposition  which  I  shall  here  state  to  you,  and  which  it  is  very 
important  you  should  bear  in  mind.  They  have  not  been  able  to  advance 
any  other  distinct  proposition,  or  certainly  they  would  have  done  it.  In- 
deed the  learned  gentleman  who  has  preceded  me  was  forced  to  acknow- 
ledge, that  this  was  their  only  ground,  and,  with  submission  to  the  Court, 
I  take  upon  myself  the  responsibility  of  telling  you,  that  it  is  the  true 
point  on  which  the  whole  case  depends.  It  is  all  that  you  are  called  to 
try:  the  issue  is  joined  upon  it,  and  on  it  must  you  decide  by  your  ver- 
dict. This,  may  it  please  your  Honour,  is  the  proposition — the  only  one 
advanced  by  the  opposite  counsel:  that  by  intendment  of  law  and  the  rules 
of  parliamentary  order,  the  party  whom  we  represent  voted  with  the  other 
party,  or,  by  silence,  acquiesced  in  their  proceedings.  Here  is  the  whole 
case:  every  thing  else  that  has  been  urged  is  but  auxiliary  and  ancillary 
to  this.  There  has  been  a  waste  of  all  the  testimony  that  does  not  sup- 
port this  point.  Wit,  argument,  and  eloquence  have  failed  to  illustrate 
any  other  proposition  on  which  they  can  pretend  to  claim  a  verdict,  than 
that  by  intendment  of  law  the  Old-school  voted  with  the  New.  It  is  for 
no  mere  forensic  parade  that  I  tell  you,  that  I  have  not  been  able  to  ascer- 
tain what  the  learned  counsel  would  be  at,  if  it  be  not  this.  And  I  would 
say  emphatically,  that  this  is  a  question  more  of  law  than  of  fact ;  that  you 
are  called  upon  to  decide,  in  the  exercise  of  your  function  as  jurors,  mat- 
ters of  fact,  indeed,  but  these  mixed  up  with  most  important  principles  of 
jurisprudence.  You  are  to  determine,  whether  in  the  Assembly  of  1838, 
our  silence  was,  by  intendment  of  law  and  of  parliamentary  rules,  an  ac- 
quiescence in  the  revolutionary  proceedings  of  the  New-school  party;  for 
if  it  was  not,  they  cannot  ask  a  verdict  at  your  hands.  To  establish  this 
sole  proposition  is  both^the  beginning  and  end  of  their  case. 


278  PRESBYTERIAN  CHURCH  CASE. 

Before  I  proceed  to  examine  minutely  the  different  points  of  law  and  fact 
upon  which  this  proposition  depends,  I  would  endeavour  to  present  a  gen- 
eral view  of  the  attitude  in  which  the  respective  parties  to  this  proceeding 
stand  before  the  court  and  jury.  It  will  be  of  great  consequence,  I  think, 
that  you  should  carry  along  with  you  a  clear  understanding  of  their  rela- 
tive position. 

In  the  course  of  the  remarks  which  I  have  before  made,  I  endeavoured 
to  illustrate  the  attitude  of  these  parties  for  purposes  and  with  results, 
which  I  shall  not  again  detail  at  large;  but  even  in  regard  to  the  points 
thus  presented,  it  seems  necessary  that  I  sholild  yet  say  a  word.  These 
Relators  have  not  asserted,  that  our  Assembly  of  183S  was  not  the  true 
General  Assembly  :  if  they  had,  we  should  have  demurred  to  their  sug- 
gestion. It  is  not  their  business  to  impugn  and  to  vituperate  our  proceed- 
ings. We  are  a  mere  nonentity,  and  do  not,  from  the  necessity  of  the 
case— e.r  officio — stand  up  for  the  acts  of  the  Assembly  of  1837  or  1838. 
It  is  a  fundamental  error,  to  suppose  that  we  are  bound  to  vindicate  either. 
Our  duty  is  merely  to  contend  that  the  relators  have  not  been  legally  ap- 
pointed, that  they  have  no  rights  to  establish  in  this  court.  I  may  be 
considered  as  attorney  for  the  Princeton  Seminary:  we  say  that  that  insti- 
tution shall  not  be  used  and  managed  by  the  relators;  that  they  have  no 
just  claim  to  it,  and  that  we  choose  to  retain  possession  of  its  funds.  We 
deny  that  theirs  was  the  true  General  Assembly. 

The  first  general  ground  which  we  take,  and  I  say  it  with  no  asperity 
of  feeling,  is,  that  the  management  of  those  sacred  charities,  which  the 
pious  people  of  the  Presbyterian  Church  have  confided  to  our  hands,  shall 
not  be  seized  upon,  and  forced  from  us  by  men  claiming  authority,  against 
the  evidence  of  the  clearest  facts,  by  a  mere  intendment  of  law.  The 
learned  couasel  have  distinctly  placed  their  claim  upon  that  ground,  for 
they  freely  admit  that  in  1838,  a  decided  majority  of  the  representatives 
of  the  Church  met  in  the  body  that  held  its  sessions  in  the  house  in  Ran- 
stead  Court.  They  say  that  because  we  sat  mute,  though  we  refused  to 
give  countenance  to  the  proceedings  of  the  New-school  party,  regarding 
them  as  a  disorder  and  an  outrage,  we  surrendered  our  rights  to  them; 
and  they  now  come  into  court,  and  seek  to  establish,  by  the  verdict  of  a 
jury,  in  spite  of  the  notorious  fact,  under  cover  of  a  mere  technicality  of 
law,  that  they  have  superseded  us.  They  ask  you  to  make  the  minority, 
those  who  took  advantage  of  their  brethren  by  a  legal  artifice,  trustees  of 
the  beneficence  of  the  whole  Presbyterian  Church.  In  the  outset  we  tell 
these  gentlemen,  that  we  shall  avail  ourselves  of  every  means  which  the 
law  puts  within  our  power,  in  a  contest  with  men  who  rest  their  whole 
claim  upon  an  intendment  of  law,  and  assert  in  direct  contradiction  of  all 
the  evidence  of  facts,  that  the  majority  of  the  General  Assembly  of  1838 
agreed  to  measures,  which  they  never  agreed  to — measures  which  they 
have  always  denounced  in  the  bitterness  of  their  hearts.  Doubtless,  gen- 
tlemen of  the  jury,  every  one  of  you  has  been  somewhat  conversant  with 
legal  proceedings,  but  I  venture  to  say,  that  you  have  never  before  seen 
any  litigant  come  into  court,  and  boldly  declare,  "  I  claim  a  verdict  against 
the  notorious  facts  of  the  case,  against  the  clearly  expressed  intention  of 
the  parties  to  the  transaction  upon  which  the  jury  is  to  decide.  By  a 
trick  I  have  supplanted  my  opponents.  I  know  that  they  understood  the 
transaction  in  one  way,  but,  by  a  quibble,  I  can  make  you  understand  it 


MR.  PRESTON'S  ARGUMENT.  279 

in  another  way."  I  venture  to  say  in  advance,  that,  if  the  relators  in  this 
suit  are  successful;  if  the  court  and  jury  establish  their  suppositious  case; 
if  by  a  mere  legal  technicality  they  triumph,  it  will  be  the  first  time  that 
I  have  known  such  a  triumph.  I  am  aware  of  the  existence  of  a  vulgar 
notion,  that  the  law  is  full  of  tricks,  and  technicalities,  and  sly  meanings, 
and  adroit  artifices.  I  beg,  gentlemen,  that  you  will  not,  for  a  moment, 
think  thus  of  the  common  law.  God  forbid,  that  I,  an  humble  officer  in 
the  temple  of  the  law,  should  ever  behold  a  sheer  artifice,  a  trick,  a  quib- 
ble, prevail  over  justice.  But  this  is  altogether  a  mistaken  conception. 
The  common  law  is  a  fabric  built  by  the  skill  of  ages — a  system  of  wis- 
dom moulded  by  the  experience  of  centuries.  It  has  grown  with  the 
wants  of  society,  and  rests  upon  the  sacred  principles  of  justice.  From 
time  to  time  it  has  been  amended  and  improved.  It  is  a  rich  alluvion 
washed  up  by  a  thousand  fertilizing  streams.  Such  being  the  character  ot 
this  glorious  system,  will  you  narrow  it  down  to  a  miserable  technicality, 
and  fritter  away  the  eternal  principles  of  right  to  mere  quibbles,  and  legal 
intendments?  It  cannot,  it  must  not  be!  Suppose  I  were  dealing  with  my 
neighbour,  and  should  give  him  a  paper  to  sign;  that  he  should  say  "I 
understand  the  instrument  thus,"  and  upon  my  acquiescence  in  his  view 
of  the  matter  should  subscribe  his  name.  And  suppose  I  should  then  go 
to  a  lawyer  and  say  to  him,  "  I  know  that  my  neighbour  understood  this 
paper  according  to  the  intent  that  appears  upon  its  face;  but  cannot  I  con- 
vince a  court  and  jury,  that  by  intendment  of  law  it  must  bear  another 
construction,  a  construction  which  will  deprive  him  of  the  very  rights 
which  he  imagined  the  instrument  was  framed  to  secure?"  Would  not 
every  honest  man  reject  such  a  proposal  with  scorn  and  indignation  ?  Oi-, 
to  put  another  case,  if  any  one  of  the  gentlemen  engaged  in  the  transac- 
tions, on  the  character  of  which  you  are  called  to  decide,  had  come  to  us 
and  said,  "  Gentlemen,  we  are  informed  by  counsel  learned  in  the  law, 
that  if  we  put  this  question  to  the  whole  Assembly,  and  you  are  silent, 
you  will  be  considered  as  acting  with  us,  as  acquiescing  in  our  proceed- 
ings"— would  they  have  got  our  vote?  They  do  not  pretend  that  they 
would.  Yet,  as  the  testimony  shows,  keeping  their  intention  private, 
without  putting  us  upon  our  guard,  they  proposed  the  question,  and  we 
remaining  silent,  they  have  gone  away  and  declared  that  the  whole 
Assembly  voted;  that  those  agreed  to  the  measure,  whom  they  know  to 
have  been  in  direct  opposition  to  it.  Is  this  fair:  is  it  equitable?  Shall 
we  resign  to  such  men  the  complete  control  of  these  funds  of  charity,  or 
agree,  without  a  desperate  struggle,  to  suri-ender  the  rights,  which  they 
would  wrest  from  us  by  an  intendment  of  law?  No!  It  is  our  sacred  duty 
as  trustees  to  resist,  to  the  very  uttermost,  every  such  attempt.  The 
whole  of  the  relators'  case  depends  upon  the  proposition  that  the  Old- 
school  voted  with  the  New.  Did  they  thus  vote:  did  a  majority  of  the 
Assembly  of  1S3S  acquiesce  in  the  proceedings  of  the  New-school?  Did 
we  assent  to  their  measures?  Did  we  assist  in  the  organization  of  their 
Assembly?  Unless  these  questions  can  be  answered  in  the  affirmative, 
I  say,  with  submission  to  your  Honour,  that  the  relators  are  out  of 
court,  that  they  cannot  ask  this  jury  for  a  verdict. 

Will  any  thing  authorize  a  conclusion  in  spite  of  the  clear  testimony  of 
facts?  There  is  a  maxim,  to  which  in  my  practice  I  have  always  ad- 
hered with  pride  and  ^lid  comfort,  and  which  I  believe  is  in  accordance 


280  PRESBYTERIAN  CHURCH  CASE. 

with  the  dictates  of  sound  reason:  that  law  may  be  found  for  whatever  a 
spirit  of  equity  sanctions.  JVfever  yet  have  I  failed  in  the  application  of 
this  doctrine,  unless  in  the  present  case.  Tell  me  what  is  right,  and  fit, 
and  according  to  eternal  justice,  and  I  will  find  law  for  it.  But  here  our 
opponents  say,  "  The  facts  are  clearly  against  us;  in  equity  we  are  not  en- 
titled to  the  charitable  funds  of  which  we  claim  the  control;  yet  can  we 
find  law  that  will  set  aside  the  principles  of  justice;  some  nice  technicality 
that  will  support  our  claim."  But  they  cannot  succeed  even  on  this 
ground.  There  is  something  in  the  benign  spirit  of  ihe  common  law  that 
will  protect  it  from  such  abuse  and  degradation.  I  cannot  suppose  that 
any  legal  technicality  or  fiction  can  be  productive  of  aught  but  the  com- 
mon good.  But  I  do  not  rely  merely  upon  the  common  law  of  the  land, 
when  these  pious  charities  are  at  stake.  There  are  profound  and  holy 
questions  of  religious  right  which  are  beyond  the  spirit  of  human  laws. 
I  invoke  the  sanctions  of  that  eternal  law  of  heaven,  by  which  right  and 
justice  shall  in  the  end  triumphantly  prevail,  however  they  may  be  tor- 
tured and  disfigured  by  human  tribunals. 

Such,  then,  is  one  view  of  the  attitude  in  which  the  respective  parties 
to  this  proceeding  stand.  There  is  another,  gentlemen,  which  is  hardly 
less  important.  Here  we  have  a  minority — a  clear  and,  an  avowed  mi- 
nority, claiming  to  exercise  the  rights  of  a  majority.  I  say  that  our 
opponents  avow  themselves  to  be  the  minority;  yet  there  is  a  reservation 
in  this  acknowledgment,  and  I  must  say  that  it  is  with  pain  I  mention 
it.  There  have  been  many  unpleasant  things  in  the  history  of  this  trans- 
action, but  to  me,  the  most  unpleasant  is  the  means  by  which  these  mis- 
taken gentlemen  attempt  to  shield  themselves  from  the  imputation  of 
being  a  revolted  minority.  They  say  that  the  Old-school  are  to  be  con- 
sidered as  a  part  of  their  body,  that  their  list  included  all.  That  when 
they  went  away  from  the  church  in  Ranstead  Court,  it  was  the  departure 
of  the  whole  Assembly.  In  the  first  place  they  assert,  that  by  intend- 
ment of  law,  we  are  to  be  considered  as  voting  with  them,  as  acquiescing 
in  their  violent  measures;  and  then,  that  by  another  intendment  of  law, 
we,  who  continued  our  session  in  Ranstead  Court,  were  a  part  of  the 
body  that  assembled  in  the  First  Presbyterian  Church.  So  notorious  is 
the  contrary,  that  if  this  were  stated  as  the  naked  fact,  every  body  would 
be  shocked  at  the  perversion  of  truth.  And  when,  by  a  mere  pretext,  a 
mockery,  they  seek  to  support  their  assertion,  we  must  be  permitted  to 
say  to  the  counsel  learned  in  the  law,  whose  authority  they  invoke,  you 
have  mistaken  the  law  most  egregiously.  What!  we  went  with  them? 
Suppose  we  had  gone,  in  accordance  with  their  invitation,  and  their  hol- 
low protestations  of  brotherly  kindness:  suppose  we  had  marched  in  solid 
column  into  the  church  on  Washington  Square — what  would  have  been 
their  position?  Did  they  intend  that  we  should  go  with  them?  Did 
they  expect  us  to  go,  and  vote  them  down?  How  their  kind  hearts  would 
have  dilated  with  joy,  if  we,  the  defeated  and  suppliant  majority  had 
taken  our  seats  among  them,  and  voted  them  out  of  the  Assembly.  Would 
this  have  been  what  they  expected  and  wished?  Why  immediately  they 
would  have  resumed  their  march.  As  soon  as  Dr.  Elliott  had,  by  our 
votes,  regained  possession  of  the  chair,  they  would  again  have  organized 
themselves,  "  in  the  fewest  words,  in  the  shortest  time,  and  with  the  least 
interruption  possible,"  and  would  have  retired  to  the  next  Presbyterian 


MR.  PRESTON'S  ARGUMENT.  281 

church.  Following  their  advice,  and  accepting  their  kind  invitation,  it 
would  have  been  our  duty  to  follow  them  immediately  to  this  second 
church;  else  they  would  have  begun  to  be  the  General  Assembly,  and  to 
regret,  most  profoundly,  the  absence  of  their  brethren.  Well,  we  follow 
them  to  the  next,  the  same  scene  is  re-enacted,  and  so  on  until  they  are 
driven  out  of  the  town — perhaps  to  some  place  within  the  bounds  of  the 
exscinded  Synods,  to  find  a  locality  for  the  organization  of  the  true  and 
constitutional  Assembly.  This  must  have  been  the  result,  had  we  pro- 
ceeded in  the  course  urged  upon  us  by  our  opponents.  We  could  have 
established  our  rights  only  by  the  subversion  of  theirs.  Did  they  intend 
that  we  should  be  of  them?  Perhaps  this  was  an  intendment  of  law. 
Could  they  have  constituted  their  Assembly,  could  they  have  proceeded 
one  inch,  had  we  been  present?  Their  intention  undoubtedly,  notoriously, 
was  to  split  us  off,  to  separate  us  from  them.  It  is  a  mockery,  an  offen- 
sive mockery,  to  tell  us,  that  we,  the  majority  of  the  General  Assembly, 
were  with  them,  when  they  know,  that  if  we  had  been  there,  we  should 
have  defeated  their  purpose,  and  subverted  all  their  machinations.  There, 
gentlemen,  is  another  thing,  that  I  beg  you  will  carry  along  with  you. 

I  proceed  to  a  third  point — to  still  another  position  taken  by  my  learned 
friend.  He  asks  who  we  are,  and  who  are  they.  In  this  part  of  his  ar- 
gument he  has  answered  the  first  question,  but  like  some  of  his  friends 
has  forgotten  to  reverse  it.  I  make  the  same  inquiries,  and  shall  attempt 
to  answer  both.  Who  are  the  members  of  this  Old-school  party?  "Ju- 
venile patriarchs"  we  are  told;  hot-headed  young  men  who  are  striving 
to  sieze  the  reins,  like  a  youth  of  old,  who  drove  another  chariot  athwart 
the  sky.  But  which  are  these  young  heads?  Is  that  reverend  gentleman 
(Dr.  Green)  one  of  the  "juvenile  patriarchs,"  who  have  been  thought  fit 
subjects  of  merriment  and  derision?  His  sword  was  fleshed  in  our  polit- 
ical wars,  before  he  passed  from  the  ranks  of  the  Revolutionary  army,  to 
the  head  of  the  Presbyterian  Church.  God  forbid,  that  he  has  been 
spared,  only  to  weep  now  over  the  tomb  of  all  he  has  most  loved  and 
cherished!  Or  is  the  Rev.  Dr.  Alexander  the  rash,  impetuous  youth, 
who  would  lay  a  parricidal  hand  upon  the  institutions  of  the  Church  ?  Is 
it  that  hand,  trembling  with  age,  that  has  aimed  the  deadly  stroke? 
Around  you,  in  every  direction,  you  behold  grey  heads  and  bent  bodies; 
and  these  are  the  "juvenile  patriarchs,"  the  unholy  band,  that  would  de- 
stroy the  Church  of  their  fathers! 

Who  are  they  upon  the  other  side?  Men  of  whom  the  largest  portion, 
as  I  trust,  after  a  serious  contemplation  of  the  several  vexed  questions  that 
have  divided  the  Church,  have  come  to  the  conclusion  that  the  New- 
school  are  right.  I  hope  and  trust  that  they  are  candid  and  conscientious 
in  their  differences  from  us.  But  are  there  no  youths  among  them!  If 
the  statistics  of  their  ages  were  taken,  would  not  we  be  their  elders  ?  If 
their  faith  be  measured  by  the  Presbyterian  standard,  must  we  yield  to 
them  in  orthodoxy?  Has  any  body  or  sect,  any  man,  woman,  or  child, 
ever  denied  that  the  cause  we  advocate  is  Presbyterianism — thorough- 
going, true-blue  Presbyterianism?  Has  any  one  pretended  to  doubt 
whether  Dr.  Green,  and  Dr.  Alexander,  and  Dr.  Miller  are  Presbyterians? 
None,  even  in  the  heat  of  theological  controversy,  or  when  labouring 
under  the  exacerbations  of  party  strife,  have  ever  asserted  the  contrary. 
And  what  are  our  oppoifBnts?     Some  of  them  have  sat  as  committee-men 

36 


282  PRESBYTERIAN  CHURCH  CASE. 

in  the  judicatories  of  our  Church;  some  of  them  have  sat  in  Congrega- 
tional churches.  They  have  I'.ot  deemed  this  a  matter  of  serious  impor- 
tance. The  difference  between  the  two  sects  they  regard  as  trifling  and 
frivolous,  and  now  they  are  Presbyterians,  now  Congregationalists,  and 
again  Presbyterians.  Some  of  them  have  travelled  over  the  country  with 
an  assortment  of  faiths  in  their  pockets.  Here  is  a  sample  for  Congrega- 
tionalists; here  another  for  Presbyterians.  We  are  not  contending  about 
money:  Pll  show  you  that  we  are  not.  We  go  for  the  doctrines,  the 
faith  of  the  Presbyterian  Church.  My  learned  friend  has  spoken  of  an 
infant  prayer  lisped  at  the  mother's  knee — I  wish  I  could  remember  the 
beautiful  language  in  which  he  depicted  that  kneeling  infant.  But  they 
of  whom  he  speaks,  they  who  have  received  these  early  lessons,  are  Con- 
gregationalists, and  their  only  language  is  that  which  they  have  been 
taught  in  infancy.  By  such  training,  the  propensities  of  their  nature  have 
been  fixed,  and  with  the  burden  of  that  lisping  prayer  still  upon  their  lips, 
they  come  to  seize  upon  our  faith  and  sacred  charities.  Have  we  any 
thing  of  this  kind  among  us?  We  are  Presbyterians,  whatever  they  may 
claim,  or  are  proved  to  be.  If  this  case  is  decided  against  us,  it  will  be 
decided  against  the  Presbyterian  Church. 

But  what  is  the  purpose  of  our  opponents?  Remember,  gentlemen, 
that  on  the  third  Thursday  of  May,  1838,  a  disorderly,  loose,  disjointed 
mass  of  men  swept  from  the  portals  of  that  church  in  Ranstead  Court, 
and  that,  to  us,  the  next  indication  of  their  doings,  was  the  bolt  of  light- 
ning aimed  at  the  head  of  the  venerable  man  before  you.  They  talk  of 
caring  naught  for  money;  they  talk  of  reverence  for  age,  and  call  us  the 
"juvenile  patriarchs."  Yet  their  only  efficient  act  is  the  blow  by  which 
they  would  have  stricken  down  that  aged  and  trusty  servant  of  the 
Church;  an  act  which  says  in  language  too  plain  to  be  mistaken,  "We 
want  the  money;  we  are  not  willing  to  intrust  you  with  these  funds." 
This  is  their  fraternal  feeling,  their  meek  forbearance,  their  Christian 
kindness.  And  their  object  is  to  be  accomplished,  this  reverend  father 
is  to  be  excluded  from  his  seat,  and  the  funds  of  the  Church  to  be  given 
over  into  their  hands,  against,  and  in  spite  of  the  evidence  of  facts,  by  an 
intendment  of  law! 

Court  adjourned. 


TUESDAY  MORNING,  March  19th.— 10  o'clock. 

May  it  please  your  Honour — Gentlemen  of  the  Jury: — I  yesterday 
stated  to  you,  in  the  first  place^  my  notion  of  the  real  question  on  which 
you  are  to  decide;  and  then,  as  my  duty  seemed  to  require,  attempted  to 
illustrate  the  true  attitude  of  the  respective  parties  to  this  suit,  in  order  to 
remove  all  prejudice  from  your  minds,  and  that  you  might  carry  along 
with  you,  a  clear  understanding  of  their  relative  positions.  I  submitted 
to  your  Honour,  that  the  real  and  sole  question  on  which  tlie  case  turns, 
that  which  must  be  the  essence  of  the  finding  of  this  jury,  is,  whether  by 
intendment  of  law,  the  majority  of  the  Assembly  of  1838  are  to  be  pre- 
sumed to  have  acquiesced  in  the  proceedings  of  the  minority.  This 
question  of  legal  intendment,  gentlemen,  is  for  the  Court.  Whether  there 
are  facts  to  authorize  such  an  intendment  is  for  your  decision.  If  instruct- 


MR.  PRESTON'S  ARGUMENT.  283 

ed,  that  under  certain  circumstances,  that  intendment  will  arise,  it  will  be 
your  duty  to  determine  whether  those  circumstances  actually  exist  in  the 
present  case.  The  first  question  is  merely  a  question  of  order,  and  turns 
exclusively  on  parliamentary  rules — rules  not  even  of  the  dignity  of  par- 
liamentary law,  strictly  so  called,  but  of  the  nature  only  of  regulations  of 
parliamentary  order,  made  to  facilitate  business.  Now,  it  is  not  for  me 
to  disparage  parliamentary  rules  of  order;  certainly  they  are  of  great 
propriety.  Prescribed  forms  are  necessary  to  the  due  execution  of  any 
business,  and  cannot  be  deviated  from  without  danger.  Justice  is  best 
secured  by  a  strict  adherence  to  these  forms.  Therefore,  I  cannot  concur 
with  my  learned  friend,  in  considering  them  of  an  unimportant  and 
trifling  character,  whether  prescribed  by  the  General  Assembly,  or  any 
other  parliamentary  body.  He  has  been  pleased  to  speak  in  a  light  man- 
ner of  their  influence  and  power;  to  ridicule  them  as  contained  in  un- 
bound, or  but  half-bound  books.  And  this,  when  his  whole  case  may 
depend  upon  the  very  slightest,  the  most  unimportant  of  them;  when,  but 
for  one  of  these  rules  it  would  be  impossible  for  the  plaintiffs  to  come  in- 
to this  court.  Not  only  do  they  claim  under  rules  of  order;  the  very  least 
of  them  is  the  foundation,  the  corner  stone  of  their  proceeding.  Here  it 
is:  {Appendix  to  Constitution^  R.  30.) 

"  Members  ought  not,  without  weighty  reasons,  to  decline  voting,  as 
this  practice  might  leave  the  decision  of  very  interesting  questions  to  a 
small  proportion  of  the  judicatory.  Silent  members,  unless  excused 
from  voting,  must  he  considered  as  acquiescing  with  the  majority.'^ 

This  is  the  rule  on  which  the  relators'  case  hangs — a  rule  in  some  sort 
unauthorized,  though  adopted  by  the  General  Assembly,  for  the  regula- 
tion of  its  own  conduct.  And  not  only  does  it  appear  in  an  unauthorized 
shape,  but,  as  we  are  told,  must  according  to  the  practice  of  the  General 
Assembly,  be  adopted  at  each  meeting,  before  it  becomes  obligatory.  In 
the  very  case  before  us,  this  very  rule  was  considered  of  so  slight  an 
authority,  that  Dr.  Beman,  when  Dr.  Fisher  had,  as  it  is  said,  been  elected 
Moderator,  instructed  him  only,  that  his  future  conduct  should  be  go- 
verned by  the  rules  to  be  subsequently  adopted;  that  is  by  an  ex  post 
facto  law.  This  code,  according  to  the  declaration  of  our  opponents,  is 
not  binding  upon  any  Assembly,  until  first  re-enacted  by  that  body.  In 
other  words,  each  Assembly  is  to  be  organized,  according  to  fundamental 
rules,  which  rules,  however,  do  not  exist  until  the  Assembly  re-enacts 
them  after  its  complete  organization;  and  which,  therefore,  when  re- 
enacted,  must  be  retro-active.  Such  is  the  opinion  of  the  learned  counsel 
in  regard  to  these  regulations  of  order,  though  on  one  of  them,  as  I  have 
said,  their  whole  cause  depends.  Of  course  I  shall  not  complain  of  this. 
Indeed  the  thing  will  correct  itself.  All  bodies  regularly  organized  must 
be  organized  according  to  rule.  And  I  am  willing  now,  to  presume,  that, 
in  the  present  case,  the  rule  just  read,  did  exist,  previously  to  its  re-enact- 
ment by  the  Assembly  of  1838;  and,  if,  by  virtue  of  it,  our  opponents 
can  make  out  their  case,  you  must  find  a  verdict  for  them. 

Now,  gentlemen,  have  they  brought  themselves  under  the  law?  I  think 
I  can  show  that  they  are  not  within  its  provisions;  that  they  cannot  claim 
by  it.  It  is  conceded  on  all  hands  that  we  did  not  vote;  that  we  did  not 
intend  to  vote;  that,  if  we  had  voted,  it  would  have  been  against  the  reso- 
lutions, and  to  contradict  any  intendment  of  law.     But,  say  the  learned 


284  PRESBYTERIAN  CHURCH  CASE. 

gentlemen,  "  silent  members  must  be  considered  as  acquiescing  with  the 
majority." 

Under  what  circumstances  can  this  acquiescence  be  presumed  to  take 
place?  Only  where  a  question  is  actually  put.  If  a  question  be  put  in  a 
legal  manner,  to  a  legally  organized  Assembly,  and  a  portion  of  the  body 
refuse  to  vote,  they  are  considered  as  acquiescing  with  the  majority. 
Although  of  this,  on  its  mere  enunciation,  there  seems  to  be  no  doubt, 
though  it  appears  like  a  very  simple  proposition,  yet,  in  fact,  it  is  most 
complex,  depending  on  a  great  many  elements  of  very  nice  consideration, 
and  in  themselves  conflicting.  It  has  been  stated  in  the  summing  up  of 
this  case,  that  there  was  a  question  proposed,  that  it  was  put  in  the  affir- 
mative, that  it  was  reversed,  and  this  in  a  proper  form,  that  it  was  put 
loudly  enough  to  be  heard,  and  that  it  is  no  matter  whether  it  was  actually 
heard  or  not.  The  learned  counsel  has  omitted  the  most  important  and 
striking  particular.  Not  only  must  the  question  be  put,  and  reversed, 
but  it  must  be  put  by  a  competent  person.  This  item  he  has  omitted. 
Of  all  the  requisite  elements  he  has  cautiously  avoided  that  which  is  the 
most  essential.  We  are  now  engaged,  it  must  be  remembered,  upon  a 
point  of  order.  The  rights  of  the  respective  parties  to  this  proceeding 
depend  upon  your  construction  of  a  rule  of  order.  And,  in  the  begin- 
ning, I  tell  you  that  one  of  the  most  important  elements  in  your  inquiry, 
is,  whether  the  question  was  put  by  the  proper  person.  In  regard  also 
to  all  the  other  elements  you  must  decide:  not  only  whether  the  question 
was  put  by  a  proper  person,  but  whether  in  the  proper  manner,  and  at  the 
proper  time — whether  it  was  in  order  at  that  time.  It  is  of  the  utmost 
consequence  that  the  proceeding  should  have  been  orderly,  and  according 
to  parliamentary  rules.  If  it  was  disorderly,  we  were  not  bound  to  vote 
upon  it.  If  in  its  commencement  it  was  disorderly,  our  rights  are  not 
affected:  the  rule  does  not  oblige  us  to  take  part  in  a  disorderly  proceed- 
ing. It  is  only  when  a  question  is  in  order,  that  all  who  are  entitled  to 
vote,  and  do  not  dissent,  are  considered  as  acquiescing.  If  the  vote  is 
upon  a  question  not  properly  put  into  the  possession  of  the  house,  no  one 
can  be  bound  by  it.  The  act  is  disorderly,  and  none  but  an  orderly  act 
can  be  binding  upon  any  one. 

I  ask  then,  was  Mr.  Cleaveland's  motion  put?  And,  first,  to  put  a 
question  requires  a  competent  person.  Under  this  rule  there  is  an  agree- 
ment in  the  nature  of  a  contract — a  contract  that  whenever  a  question  is 
put  by  a  person  having  authority  to  put  it,  and  is  voted  upon,  all  the 
members  shall  be  bound  by  that  vote.  Had  Cleaveland  a  right  to  put  the 
question  which  it  is  said  he  put,  according  to  parliamentary  rules?  I  am 
not  now  speaking  of  the  nature  of  the  question  itself.  Could  any  ques- 
tion be  put  by  an  individual  member,  so  that  the  vote  upon  it  should  be 
obligatory?  Was  Mr.  Cleaveland  authorized  to  rise,  and,  superseding 
all  forms  and  rules,  to  put  the  house  in  possession  of  any  question,  by  a 
vote  on  which  they  would  be  bound?  I  believe  that  in  the  whole  history 
of  this  General  Assembly,  or  of  the  British  Parliament,  from  which  all 
our  laws  on  this  subject  have  been  derived — and  they  embody  the  col- 
lected wisdom  of  ages,  beginning  even  with  the  date  of  the  Wittenage- 
mote — or  in  the  history  of  the  Congress  of  the  United  States,  or  any 
legislature  in  all  the  twenty-six  individual  States,  a  single  instance  cannot 
be  found  of  a  question's  being  put  by  a  private  member  of  the  body.     I 


MR.  PRESTON'S  ARGUMENT.  285 

will  not  presume  to  say  positively,  from  my  narrow  acquaintance  with 
the  history  of  these  different  assemblies,  that  no  such  instance  has  ever 
occurred:  certainly  I  have  never  heard  of  one.  I  believe  farther,  dis- 
embarrassing myself  of  the  contemplation  of  such  high  and  stately  as- 
semblies as  the  British  Parliament,  and  the  Congress  of  the  United  States, 
that  the  experience  of  every  one  will  bear  me  out  in  the  assertion,  that 
no  debating  club,  or  ward  meeting  was  ever  put  in  possession  of  such  a 
question,  but  by  its  own  constituted  officer.  The  proceedings  then  of 
the  New-school  party  were  at  least  novel,  and  most  strange,  if  amid  all 
,the  scenes  of  contention  and  violence,  which  marked  the  earlier  stages 
of  the  British  Parliament,  and  the  whole  progress  of  the  French  Revo- 
lution, so  revolutionary  a  measure  is  not  to  be  found.  It  is  not  for  me  to 
insist  upon  the  dangerous  consequences  of  such  a  disorder,  in  a  large  and 
tumultuous  assembly,  amid  the  storm,  the  lempest  excited  by  the  conflict 
of  parties,  each  conspiring  to  take  advantage  of  the  other.  How  great 
would  be  the  confusion,  in  even  a  small  body,  if  it  were  divided  by  half- 
a-dozen  parties,  of  different  feelings  and  sentiments,  forming  half-a-dozen 
cliques,  and  each  proclaiming  itself  the  constitutional  majority!  How 
monstrous  might  be  the  issue  of  an  attempt  in  a  Jarger  assembly,  thus  to 
supersede  the  regular  organization.  For  every  body  like  the  General 
Assembly  has  always  a  certain  degree  of  organization:  officers  as  the 
foundation  of  its  structure,  with  rules  and  orders  of  binding  authority. 
There  must  be  always  both  a  government,  and  those  governed.  Where 
all  are  equal,  a  house  cannot  be  organized  so  as  to  be  capable  of  business, 
and  the  acts  of  each  member  can  be  binding  only  on  himself  It  would 
be  monstrous,  even  if  there  were  no  express  parliamentary  rule  to  govern 
in  the  case,  for  an  unauthorized  person,  ex  mej^n  mohi,  to  seize  the  reins, 
and  attempt  to  direct  the  proceedings  of  a  deliberative  assembly,  according 
to  his  ovvn  wishes.  If  such  an  act  be  a  revolution,  and  not  a  rebellion, 
it  can  be  so  only  by  virtue  of  success.  And  a  revolution  in  the  very  na- 
ture of  things  resolves  the  body  revolutionized  into  its  original  elements, 
and  involves  usurpation  of  authority.  Although  it  may  be  righteous, 
and  the  actors  in  it  virtuous  men,  still  it  is  a  usurpation,  and  is  not  to  be 
tried  by  rules  of  court — is  not  to  be  decided  on  by  you  gentlemen,  or  by 
his  Honour  on  this  bench. 

It  is  a  great  mistake,  and  indicates  a  very  narrow  view  of  the  subject, 
if  any  one  for  a  single  moment  supposes,  that  the  mere  suggestion  of  a 
question  is  putting  the  house  in  possession  of  it.  Any  person  might 
arise  in  the  midst  of  an  assembly,  and  propose  a  question  to  the  whole  of 
the  promiscuous  crowd  which  not  unfrequently  is  collected  in  legislative 
halls;  but  would  a  vote  upon  it  bind  any  one,  or  conclude  his  rights? 
Suppose  all  were  called  upon  to  answer,  but  many,  regarding  the  act  as 
disorderly  and  riotous,  should,  from  a  sense  of  decorum,  remain  silent; 
would  they  be  considered  as  acquiescing  in  the  vote?  Or  would  the  in- 
dividual putting  the  question  be  justified  to  go  abroad  and  proclaim  that 
the  majority  of  the  whole  house  had  assented  to  his  proposition?  If  I 
should  quit  addressing  you  under  his  Honour's  direction,  and  should  say, 
"  Gentlemen  of  the  jury,  I  suppose  your  verdict  is  with  me.  Are  not 
your  minds  made  up  upon  this  question?  Remember  that  silence  gives 
consent" — could  your  silence  be  taken  as  consent?  Suppose  you  were 
silent,  and  I  should  go  forth,  and  announce  that  we  had  gained  the  great 


I 

286  PRESBYTERIAN  CHURCH  CASE. 

Presbyterian  cause,  but,  a  day  or  two  after,  you  should  give  a  different 
verdict,  would  not  my  position  be  exceedingly  awkward?  But  why? 
Why  are  you  not  called  upon  to  answer  when  I  address  such  a  question 
to  you?  Because,  although  I  am  an  officer  of  the  court,  I  am  not  author- 
ized to  demand  or  receive  your  verdict.  But  if  his  Honour  asks  you, 
"Gentlemen,  have  you  agreed  upon  your  verdict?"  you  are  bound  to  an- 
swer him,  because  he  is  exercising  a  proper  authority. 

What  is  putting  a  house  in  possession  of  a  question?  Is  the  mere  un- 
authorized act  of  an  individual  sufficient?  When  a  member  has  made 
any  proposition,  saying,  "  I  move  you.  Sir,  so 'and  so,"  is  the  proposition 
then  in  the  possession  of  the  body?  Unquestionably  not.  Other  powers 
and  rights  intervene:  there  must  be  an  intermediation  between  himself  and 
the  other  members.  Upon  this  point  there  is  an  express  rule.  It  is 
found  in  2  HatselPs  Parliamentary  Precedents,  105. 

I  venture  to  quote  from  this  book,  may  it  please  your  Honour,  as  the 
highest  authority  on  the  subject.  The  author  has  written  with  the  pre- 
cision of  a  lawyer,  and  as  a  man  of  long  experience.  Though  the  princi- 
ples which  he  lays  down  are  not  in  the  form  of  rules,  they  are  so  wise, 
that  all  succeeding  books  of  order  have  referred  to  this  book  of  John 
Hatsell's.     He  says: 

"  It  was  the  ancient  practice  for  the  Speaker  to  collect  the  sense  of  the 
House  from  the  debate,  and  from  thence  to  form  a  question  on  which  to 
take  the  opinion  of  the  House;  but  this  has  been  long  discontinued:  and 
at  present  the  usual  and  almost  universal  method  is,  for  the  member 
who  moves  a  question  to  put  it  in  writing,  and  deliver  it  to  the  Speaker; 
who  when  it  has  been  seconded,  proposes  it  to  the  House,  and  then  the 
House  are  said  to  be  in  possession  of  the  question." 

I  have  preferred  to  quote  from  Hatsell  his  own  words,  but  they  are 
followed  by  Jefferson  in  his  Manual.  The  member  who  makes  a  motion 
must  rise,  and  address  the  presiding  officer,  and  that  officer  being  thus  in 
possession  of  the  question,  puts  it  in  the  possession  of  the  house. 

Well,  gentlemen,  I  trust  that  you  perceive,  by  this  time,  that  rules  of 
order  are  of  essential  import.  The  counsel  have  been  pleased  to  treat 
them  lightly,  because  they  were  contained  in  little  books:  I  hope,  that  at 
last,  I  have  found  one  big  enough  for  them.  (Mr.  Preston  held  up  to 
view,  2  Hatsell,  a  volume  in  quarto.)  I  beg  that  you  will  attend  to  the 
import  of  these  rules,  as  illustrated  by  the  present  case.  Every  regularly 
organized  Assembly  must  have  an  organ  through  whom  questions  may 
be  presented  to  the  body,  that  every  member  may  understand  them  dis- 
tinctly, hearing  them  propounded  by  a  responsible  person.  Hence  it  is, 
that  the  presiding  officer  of  every  body,  has  a  conspicuous  place  assigned 
him,  from  which  he  can  see  and  hear  whatever  is  said  or  done  in  the 
house,  and  where  he  may  be  heard  and  seen  by  all  the  members.  Thus 
his  Honour,  while  presiding  in  this  court,  does  not  take  a  promiscuous 
stand  among  the  spectators,  where  he  cannot  be  seen  or  heard;  nor  is  it 
merely  a  matter  of  form,  but  of  substance,  that  he  is  seated  upon  that 
bench,  from  which  he  can  superintend  and  direct  the  proceedings.  The 
convenient  administration  of  justice  requires,  that  he  should  occupy  such 
a  position.  Otherwise,  there  would  be  interminable  confusion;  none 
would  know  who  was  acting  or  what  was  done:  there  would  be  a  per- 
petual riot  and  tumult,  almost  equal  to  that  which  took  place  in  the  church 


MR.  PRESTON'S  ARGUMENT.  287 

in  Ranstead  Place.  It  is  not,  however,  from  Hatsell,  or  from  Jefferson, 
alone,  that  I  derive  this  rule  of  order.  I  can  appeal  to  a  more  direct  au- 
thority, which  cleaves  down  at  a  single  blow,  the  cause  of  our  opponents. 
If  they  themselves  are  out  of  order,  when  they  seek  to  bind  us  by  a  rule 
of  order,  they  are  not  capable  of  so  binding  us.  I  call  your  attention  to 
the  proceedings  of  the  General  Assembly  itself,  in  regard  to  this  matter. 
That  body  has  established  rules  of  order  for  its  own  government;  and 
that  these  rules  are  obligatory,  our  opponents  themselves,  do  of  necessity 
assume.  What  form  does  the  Assembly  require  to  be  observed,  in  order 
"to  put  the  house  in  possession  of  a  question?  That  very  Assembly  of 
1S3S,  established  this  rule.     Append,  to  Const.  R.  11. 

"  A  motion  made  must  be  seconded,  and  afterwards  repeated  by  the 
Moderator,  or  read  aloud,  before  it  is  debated;  and  every  motion  shall  be 
reduced  to  writing,  if  the  Moderator  or  any  member  require  it." 

The  obligatory  nature  of  this  regulation,  as  I  have  said,  our  opponents 
acknowledge.  You  have  heard  the  learned  counsel  ask  each  of  the  wit- 
nesses, "Was  the  question  seconded?"  Why  was  this?  They  found  it 
necessary  to  admit  the  obligation  of  that  part  of  the  rule,  which,  however, 
is  separated  from  the  remaining  provisions  by  a  mere  comma. 

I  put  it  to  you  then,  gentlemen,  was  the  General  Assembly  of  1838  put 
in  possession  of  Mr.  Cleaveland's  motion,  according  to  the  rules  of  order 
which  I  have  just  read  ?  Was  the  motion  "  seconded,  and  afterwards  re- 
peated by  the  Moderator  or  read  aloud  ?"  If  not,  what  obligation  was 
there  upon  the  gentlemen  sitting  in  that  house  to  give  it  their  attention? 
When  were  they  bound  to  vote  ?  When,  by  intendment  of  law,  must 
they  have  been  considered  to  have  acquiesced  ?  When  a  motion  had  been 
made,  seconded,  and  repeated  by  the  Moderator.  Then,  and  not  till  then. 
He  who  usurps  the  right  of  proposing  a  question  to  the  house,  tramples 
upon  the  constituted  authority  of  the  Moderator.  He  is  disorderly  and 
rebellious,  and  deserves  chastisement. 

In  attempting  then  to  put  the  question  on  a  mere  motion  of  his  own, 
and  by  virtue  of  his  rights  as  a  private  member  of  the  Assembly,  Mr. 
Cleaveland  trampled  on  every  rule  of  order,  and  put  himself  without  the 
pale  of  law.  Whatever  he,  or  those  who  acted  with  him,  did,  was  not 
obligatory  upon  the  other  members,  and  they  were  not  called  to  give  it 
their  attention.  Let  not  the  learned  counsel  answer,  that  this  was  an 
extraordinary  case,  a  case  unprovided  for;  that  there  was  an  extreme 
necessity  that  the  question  should  be  put,  and  that  the  Moderator  would 
not  have  put  it.  Even  if  it  had  been  such  a  case,  no  member  had  a  right 
to  rise  and  assume  the  reins,  though  they  had  been  tossed  down  by  him 
who  held  them — to  make  himself  the  presiding  officer  of  the  house.  If 
this  may  be  done  in  one  instance,  it  may  be  done  in  any  other.  If  Mr. 
Cleaveland  was  authorised  to  usurp  the  office  of  the  Moderator  in  a  case 
of  necessity,  judged  of  by  himself  alone,  what  power  is  not  constantly 
liable  to  usurpation?  Where  will  you  put  a  stop  to  the  thing?  Necessity 
has  always  been  the  tyrant's  plea,  to  justify  the  greatest  enormities. 
When  you  have  usurped  the  power  of  the  Moderator,  you  have  nine- 
tenths  of  the  whole  power  that  regulates  the  Assembly  in  your  hands. 
And  what  is  to  prevent  a  similar  usurpation  of  the  power  of  the  clerks? 
If  they  refuse  to  do  what  in  your  estimation  is  their  duty,  why  may  you 
not,  in  like  manner,mssume  their  functions?  Mr.  Cleaveland,  it  is  said, 


288  PRESBYTERIAN  CHURCH  CASE. 

took  upon  himself  the  office  of  Moderator,  because  Dr.  Elliot  had  acted 
in  derogation  from  his  duty.  Well,  the  clerks,  as  it  is  alleged,  had  been 
guilty  of  a  similar  offence.  Why  did  he  not  take  the  place  of  the  Stated 
and  Permanent  Clerks,  also?  The  making  of  the  roll  is  not  more  impor- 
tant, than  the  observance  of  the  mode  provided  for  putting  the  house  in 
possession  of  a  question.  Distinguish,  if  you  can,  between  such  an  usur- 
pation of  the  office  of  Moderator,  and  an  usurpation  of  the  clerks'  place, 
with  every  other  function  exercised  in  the  Assembly.  To  put  the  matter 
in  a  still  more  striking  point  of  view:  suppose  the  clerks,  merely,  had  vio- 
lated their  duty,  but  that  the  Moderator  had  been  willing  to  put  the  ques- 
tion insisted  on:  why  was  not  Mr.  Cleaveland  authorized  to  march  up  to 
the  clerks'  table,  seize  a  pen,  and  on  the  tyrant's  plea  of  necessity,  himself 
complete  the  roll.'*  This  case  is  not  one  whit  stronger  than  that  before  us. 
He  might  have  proceeded  in  the  latter  way  with  the  same  propriety  with 
which  he  began  at  the  highest  office — the  head  of  the  Assembly. 

If,  however,  he  was  entirely  unauthorized  to  put  any  question,  having 
put  one,  were  the  other  commissioners  bound  to  vote  upon  it,  or  must 
their  silence  be  construed  an  acquiescence?  We  take  for  granted  that  the 
Assembly  knew  its  rights.  They  knew  full  well  that  Mr.  Cleaveland - 
had  no  right  to  act  as  Moderator;  full  well  that  they  must  look  to  another 
source  for  authority.  They  knew  full  well  that  if  the  Moderator  pro- 
pounded a  question  they  remained  silent  at  their  peril;  but  that  if  any 
body  else  propounded  one  the  peril  was  his,  and  a  vote  was  wholly  void 
and  inoperative.  If  Mr.  Cleaveland  had  addressed  his  motion  to  the 
Moderator,  and  the  Moderator  had  put  it  to  the  house,  they  would  not 
have  hesitated  to  give  it  all  their  attention,  and  however  disorderly  it 
might  have  been,  if  any  had  kept  silence,  after  it  had  been  thus  put  by  the 
legitimate  authority,  by  intendment  of  law  they  might  have  been  consi- 
dered to  have  given  their  assent.  Here  is  an  established  government,  an 
organized  series  of  institutions;  a  single  individual  usurps  the  chief  exe- 
cutive direction  of  the  whole,  and  every  one  who  does' not  utter  his  dis- 
sent is  declared  to  have  submitted  to  the  usurpation.  Nothing  can  be 
more  dangerous  than  such  a  latitudinarian  doctrine.  All  tyranny  com- 
mences with  it.  Julius  Cassar  overturned  the  liberties  of  his  country  by 
the  assent  of  a  constructive  majority.  Augustus  ruled  under  a  like  sanc- 
tion; and  every  tyrant  has  done  the  same.  This  was  the  very  means  by 
which  Napoleon  rose  to  sovereignty,  while  so  many  of  the  powers  of 
Europe  were  prostrated  at  his  feet.  He  ruled  by  constructive  majorities. 
He  put  the  question  of  his  supremacy  to  the  people  in  every  Prefecture 
throughout  the  kingdom,  and  though  he  obtained  a  majority  of  all  who 
voted,  they  were  but  a  third  or  fourth  part  of  the  nation.  In  the  first 
place  he  had  not  a  real  majority;  and  besides,  the  people  were  intimidated 
by  his  train-bands,  who  made  the  air  resound  with  their  huzzas,  and  were 
ready  to  enforce  all  his  orders. 

What  are  Mr.  Cleaveland's  pleas  for  this  most  extraordinary  proceed- 
ing? I  beg,  gentlemen,  that  you  will  remark  his  own  statements — the 
category  in  which  he  places  himself.  He  rises,  with  a  paper  in  his  hand, 
beginning  with  a  formal  "Whereas."  He  reads,  comments,  and  recites, 
but  offers  no  motion  to  the  Moderator.  Here  is  a  question  of  order 
which  is  to  be  decided.  The  Moderator  is  not  in  possession  of  his  mo- 
tion: he  refuses  to  put  iiim  in  possession  of  it.     It  is  in  proof  that  he  does 


MR.  PRESTON'S  ARGUMENT.  289 

not  say  "Mn  Moderator,"  but  turns  away  from  Dr.  Elliott.  He  does 
not  say,  "  I  move  you,  or  I  move  the  house" — nothing  like  it.  Without 
a  pretence  of  having  any  personal  grievance  of  which  to  complain,  and 
without  any  reference  to  the  decision  that  the  former  motion  was  out  of 
order,  merely  on  the  ground  that  the  Moderator  has  acted  tyrannically, 
he  assumes  the  right  to  interfere  in  the  organization  of  the  Assembly,  and 
to  make  a  motion  which  does  not  purport  to  be  made  to  the  Moderator. 
If  he  had  been  refused  his  seat,  as  had  Mr.  Squier,  he  might  have  had 
some  pretext  for  such  a  proceeding,  but  as  there  had  been  no  such  refusal, 
•his  language  was,  "  I  choose  to  appoint  m.yself  Moderator  pro  hac  vice'' 
Besides,  he  did  not  try  whether  Dr.  Elliott  would  put  the  question  on 
his  motion,  and  he  is  not  entitled  to  presume  that  he  would  not  have  done 
it.     I  believe  he  would,  if  the  motion  had  been  properly  presented. 

Mr.  Cleaveland,  then,  had  suffered  nothing  of  which  he  could  com- 
plain; he  had  given  the  Moderator  no  chance  to  violate  any  of  his  rights; 
not  a  hair  of  his  head  had  been  touched.  But  voluntarily,  ex  mero  motu, 
he  clothes  himself  with  the  power  of  the  highest  office  in  the  Assembly, 
and  claims  to  exercise  it  in  the  face  of  Dr.  Elliott,  the  regularly  consti- 
tuted officer,  and  of  half-a-dozen  other  persons  on  the  floor,  who  were 
better  entitled  to  the  place  than  himself  I  beg  that  you  will  remark  who 
was  next  entitled  to  it,  according  to  the  rules  of  the  Assembly;  for  you 
will  find  that  every  step  of  Mr.  Cleaveland's  proceeding,  was  disorderly. 
Besides  Dr.  Elliott,  there  were  half-a-dozen  persons  present,  who  had  pre- 
viously been  Moderators,  and  their  rights,  as  well  as  his,  were  trampled 
on.  Mr.  Cleaveland  should  have  moved  that  the  Moderator  next  prece- 
ding Dr.  Elliott,  the  Moderator  of  1836,  should  take  the  chair.  That 
was  the  only  orderly  motion  that  could  be  made.  If  the  next  preceding 
Moderator  was  present,  he  was  the  only  person  that  could  lawfully  pre- 
side, or  that  was  capable  of  putting  a  question;  and  if  he  was  absent,  the 
Moderator  next  preceding  him,  should  have  been  called  upon,  and  so  on 
ad  infinitum,  all  that  had  ever  held  that  office  being  entitled  to  precede 
Mr.  Cleaveland.  Remember,  I  am  not  now  speaking  of  Dr.  Beman:  I 
shall  come  to  him  by  and  by.  Mr.  Cleaveland  rose,  and  in  effect,  said, 
"  Gentlemen,  Dr.  Elliott  is  no  longer  fit  to  be  Moderator:  I  am  fit,  and 
therefore  shall  assume  that  office,  put  questions  to  the  house,  and  proceed 
to  organize  the  Assembly."  He  did  proceed  to  organize  an  Assembly, 
and  upon  this  organization  our  opponents  rest  their  claim. 

You  may  now,  I  think,  venture  to  decide  this  point — whether  any  indi- 
vidual can,  of  his  own  mere  volition,  create  himself  a  presiding  officer, 
beyond  the  power  of  control,  and  exercise  all  the  duties  of  the  chair.  This 
whole  case  rests  upon  the  question  whether  Mr.  Cleaveland  was  author- 
ized to  constitute  himself  Moderator.  It  might  perhaps  have  been  awk- 
ward for  Dr.  Elliott,  to  propound  a  motion  for  his  own  removal,  but  the 
duty  was  therefore  the  more  obligatory.  If  he  was  not  fit  to  put  the 
question,  who  was?  By  what  rule  is  the  speaker  of  a  body  disqualified 
to  put  such  a  question?  But  suppose  he  had  abdicated  the  chair,  was 
functus  officio,  \N^s  self-annihilated:  whose  duty  would  it  then  have  been 
to  propose  questions  to  the  house  ?  The  English  parliamentary  law  on 
this  point  is  quite  clear;  it  has  been  well  settled  for  the  last  two  hundred 
years.  If  the  speaker  does  not  take  the  chair,  or  refuses  to  put  a  question, 
it  becomes  the  duty  oRhe  clerk  to  put  it.     So  necessary  has  it  been  found 

37 


290  PRESBYTERIAN  CHURCH  CASE. 

to  have  an  official  organ,  by  whom  questions  may  be  propounded,  that, 
although  some  may  think  there  is  little  reason  for  the  rule,  yet  the  expe- 
rience of  ages  has  decided  that  the  duty,  in  such  cases,  devolves  upon  the 
clerk.  This  rule  is  to  be  found  in  2  Hatsell,  15S,  where  all  the  prece- 
dents are  collated;  in  6  Grey,  406,  408;  and  in  Sutherland's  Ma- 
nual, 104. 

"When  but  one  person  is  proposed,  (for  the  office  of  speaker,)  and  no 
objection  made,  it  has  not  been  usual  in  parliament  to  put  any  question  to 
the  house;  but  without  a  question,  the  members  proposing  him  conduct 
him  to  the  chair.  But  if  there  be  objection,  or  another  proposed,  a  ques- 
tion is  put  by  the  clerk.     As  are  also  questions  of  adjournment."* 

This  rule  was  established  in  the  British  Parliament  more  than  two 
hundred  years  ago,  and  we,  before  we  acted  for  ourselves,  received  it  from 
England.  In  accordance  with  the  English  practice,  and  ex  necessitate 
rei,  all  of  our  parliamentary  bodies  have  uniformly  adopted  it.  In  every 
State  Legislature,  and  in  both  Houses  of  Congress,  the  clerk  puts  the 
question  whenever  the  speaker  is  not  present.  My  friend,  Mr.  Lowrie, 
who  was  examined  here,  and  who  told  you  that  he  had  been  for  a  number 
of  years  clerk  of  the  United  States  Senate,  has  often  put  questions  to  that 
body  to  be  decided  upon.  This  is  also  the  practice  in  your  own  State. 
But  what  right,  say  our  opponents — what  right  has  an  inferior  offiper  of 
the  Assembly,  the  mere  hand — the  writing  hand — the  pen  of  the  body, 
to  exercise  the  high  functions  which  not  even  a  member  can  be  allowed 
to  exercise  ?  And  why  may  he  not  have  the  right  ?  Is  it  that  the  clerk's 
office  is  not  of  sufficient  dignity  ?  Is  it  that  a  duty  which  may  be  per- 
formed by  any  body  else  is  too  important  for  the  clerk  ?  Here  my  learned 
friend's  argument  fails  entirely.  I  have  already  shown  that  long  esta- 
blished precedents  are  against  it;  but  I  have  something  more  than  prece- 
dent to  oppose.  The  clerk's  office  not  high  enough  for  him  to  be  allowed 
to  put  a  question,  when  it  is  expressly  provided  by  the  laws  of  the  Church, 
that  he  shall,  in  a  certain  emergency,  supply  the  place  of  the  Moderator! 
In  the  Form  of  Government,  under  the  head  of  the  Presbytery  you  will 
find  the  highest  power  of  the  Moderator — the  power  of  calling  together 
the  Presbytery  in  special  meeting,  conferred  in  some  cases  upon  the  Stated 
Clerk.  Experience  has  shown  that  when  the  Moderator  is  out  of  the  way, 
the  clerk  is  the  most  proper  person  to  perform  his  duties;  and  so  this  in- 
ferior officer,  the  mere  hand,  finger,  or  pen  of  the  judicatory  may  exercise 
the  high  prerogative  of  calling  together  the  members  of  the  body,  as  if  he, 
were  the  Moderator,  The  rule  is  as  follows: — Form  of  Government, 
Chap.  X.  Sec.  8. 

"The  Presbytery  shall  meet  on  its  own  adjournment;  and  when  any 
emergency  shall  require  a  meeting  sooner  than  the  time  to  which  it 
stands  adjourned,  the  Moderator,  or  in  case  of  his  absence,  death,  or  in- 
ability to  act,  the  Stated  Clerk  shall,  with  the  concurrence  or  at  the  re- 
quest of  two  ministers  and  two  elders,  the  elders  being  of  different  con- 
gregations, call  a  special  meeting.  For  this  purpose  he  shall  send  a  cir- 
cular letter,  &c," 

Now  mark,  the  words,  "  with  the  concurrence  or  at  the  request  of  two 
ministers  and  two  elders,"  do  not  apply  to  the  clerk  alone,  but  also  to 

"The  rule  as  here  given,  is  quoted  from  Sutherland. 


MR.  PRESTON'S  ARGUMENT. 


291 


the  Moderator:  both  in  this  case,  are  to  consult  with  the  same  privy 
council.  The  clerk  is  to  stand  exactly  in  the  shoes  of  the  Moderator.  If 
a  presiding  officer  refuse  to  put  a  question,  by  general  parliamentary  law, 
the  clerk  is  the  person  to  take  his  place;  and  here  by  the  rules  govern- 
ing one  of  the  judicatories  of  this  very  Church,  the  power  and  dignity  of 
the  Moderator  are  given  to  the  clerk,  in  a  case  of  far  greater  importance. 
The  learned  gentleman  has  chosen  to  denounce  the  authority  of  the  clerk, 
yet  by  the  General  Assembly  itself,  in  the  year  1S35,  where  the  delicacy 
of  the  Moderator  prevented  his  putting  a  question,  it  was  decided,  as  long 
before  it  had  been  in  the  British  Parliament,  that  the  clerk  should  put  it, 
although  the  Moderator  was  present  and  presiding  at  the  time.  From  all 
quarters  then  we  have  brought  the  most  satisfactory  proof,  that  in  every 
parliamentary  assembly,  strong  analogy  being  confirmed  by  direct  rule 
and  precedent  in  the  case  of  our  highest  Church  judicatory,  when  the 
Moderator  refuses  to  put  a  question,  or  is  absent,  or  labours  under  any 
disability,  the  question  shall  be  propounded  by  the  clerk. 

I  have  not  even  yet  completed  the  enumeration  of  the  disorders  into 
which  Mr.  Cleaveland  fell,  in  this  single  transaction.  In  our  view,  every 
thing  that  he  did  was  disorderly.  He  had  placed  himself  in  a  most  un- 
fortunate predicament.  Immediately,  upon  his  rising,  points  of  order 
strike  him,  like  the  man  in  the  picture  of  the  signs  in  the  almanac,  in  all 
his  vitals.  The  question  that  he  put  was  disorderly,  and  this  of  itself 
would  be  enough  for  our  purpose.  He  rose  and  moved  that  Dr.  Beman 
should  take  the  chair,  or  be  Moderator — the  witnesses  are  not  agreed 
upon  the  precise  words  of  the  motion,  and  non  niihi  tantas  componere 
lites.  Several  of  the  friends  of  the  other  party  who  have  been  examined, 
have  sworn  that  he  was  called  to  the  chair,  and  with  this  testimony  the 
rest  of  the  res  gestae  certainly  concur.  Mr.  Cleaveland  said  that  it  was 
necessary  to  organize  the  Assembly — of  course  to  re-organize  it,  as  it  had 
already  been  partially  organized — he  moved  that  Dr.  Beman  should  take 
the  chair,  until  a  new  Moderator  should  be  elected,  and  immediately  pro- 
ceeded to  the  election  of  this  new  Moderator.  Dr.  Beman  was,  then,  a 
mere  locum  tenens.  He  was  but  chairman  of  the  preparatory  meeting, 
or  else  you  have  three  different  Moderators  of  the  Assembly,  all  in  about 
the  space  of  six  or  seven  minutes.  Dr.  Beman  evidently  was  not  a  Mode- 
rator or  Speaker:  he  sat  merely  during  an  interregnum.  He  was  but  a 
chairman — a  sort  of  intermediation.  If,  then,  the  proposition  was  that  he 
should  take  the  chair,  it  was  in  itself,  a  disorderly  proposition,  one  un- 
der any  circumstances  disorderly,  because  entirely  unknown  to  the 
house.  Such  an  ofiicer,  as  a  chairman,  I  say,  is  unknown  to  the  General 
Assembly. 

The  question  put  by  Dr.  Beman  was,  shall  Dr.  Fisher  be  Moderator. 
Now  it  is  perfectly  immaterial  whether  he  or  Mr.  Cleaveland  first  made 
a  motion  for  the  appointment  of  a  Moderator.  One  of  them  must  bear 
the  saddle,  and  one  or  other  of  them,  if  not  both,  I  shall  show  to  have 
been  out  of  order  in  this  particular.  It  is  necessary  that  you  should  pay 
careful  attention  for  a  little  while  to  this  point.  What  question  would 
have  been  in  order?  The  only  orderly  one  that  could  be  proposed  was, 
''  Shall  the  Assembly  now  proceed  to  the  election  of  a  Moderator.''" 
This  was  never  put:  the  house  never  had  a  chance  to  vote  upon  it,  and  of 
course  there  could  be  jjo  tremendous  majority  in  favour  of  the  measure. 


292  PRESBYTERIAN  CHURCH  CASE. 

Our  opponents  shrunk  from  such  a  motion.  If  it  had  been  put,  we 
would  have  voted.  When  they  came  to  seize  our  inheritance  by  an  in- 
tendment of  law,  we  should  have  voted  them  down.  But  the  proposition 
made  by  Mr.  Cleaveland  was  that  Dr.  Beman  should  be  Moderator,  or 
if,  as  we  contend,  he  called  him  merely  to  the  chair,  at  least  the  motion 
put  by  Dr.  Beman  was,  that  Dr.  Fisher  should  be  Moderator.  They 
dispense  with  the  orderly  question,  and  get  rid  of  the  old  presiding 
officer,  in  a  way  that  relieves  all  the  awkardness  of  the  regular  proceed- 
ing. This  is  an  important  point,  that  they  go  immediately,  without  any 
preliminary  step,  into  the  election  of  a  new  Moderator.  It  has  never  be- 
fore been  known,  in  the  history  of  this  body,  that  a  Moderator  should  be 
passed  upon  as  a  motion  simply  by  yeas  and  nays.  He  is  appointed,  not 
on  a  mere  resolution,  but  on  a  nomination.  Now  we  show  that  there 
were  two  persons  in  nomination,  and  that  no  question  at  all  was  put  on 
one  of  them.  A  presiding  officer  had  been  nominated  before,  and  it  was 
not  a  question  of  courtesy,  but  a  conflict  between  these  two  men  for  the 
chair.  Our  opponents  now  state,  that  on  every  other  motion  the  vote 
was  unanimous,  but  that  on  this  there  were  some  nays,  feeling  that  it  was 
not  proper  that  the  question  should  have  been  taken  without  reversal. 
And  yet  the  learned  counsel  has  himself  told  you,  that  if  thefe  is  but  one 
nomination,  no  vote  at  all  is  necessary,  that  all  are  to  be  considered  as 
acquiescing;  but  that  if  there  are  two  nominations,  the  yeas  and  nays  must 
be  called,  the  question  being  put  on  both.  Here  were  Dr.  Elliott,  and 
Dr.  Beman  or  Dr.  Fisher,  both  to  be  voted  upon.  If  there  had  been  but 
one  it  is  granted,  that  he  might  have  been  chosen  without  calling  the  yeas 
and  nays;  but  where  there  are  two,  they  must  be  called  for  both  A  and 
B.  But  does  the  record  say  that  the  questions  were  put  by  calling  the 
yeas  and  nays:  does  it  declare  that  the  question  was  put  at  all  in  regard 
to  Dr.  Elliott?  If  Dr.  Beman  or  Dr.  Fisher  was  elected  by  a  simple  re- 
solution, such  a  thing  was  never  before  heard  of  in  the  Assembly.  The 
motion  was  out  of  order:  it  was  a  motion  entirely  unknown  in  Presbyte- 
rial  proceedings. 

Another  rule  of  order  to  be  taken  into  consideration  here  is,  that  a  per- 
son rising  to  make  a  motion  must  address  the  Moderator — must  submit 
his  motion  to  the  Assembly  through  the  established  organ.  The  presiding 
officer  of  a  body  is  the  conduit  pipe,  through  which  every  communication 
between  an  individual  member  and  the  body  must  pass.  But  Mr.  Cleave- 
land did  not  address  the  Moderator;  indeed  when  he  made  his  motion  his 
face  was  turned  away  from  the  chair,  towards  the  gentlemen  who  were 
near  him,  and  to  them  he  put  the  question.  He  not  only  did  not  put  it 
through  the  presiding  officer,  but  he  put  it  standing  in  the  rear  of  the  As- 
sembly. He  voluntarily  got  behind  the  whole  body,  and  while  in  this 
position,  constituting  himself  the  Moderator,  propounded  his  resolution. 
And  how  was  it  with  the  succeeding  motions  ?  Did  Dr.  Beman  address 
the  Moderator?  He  too  did  not  address  even  the  members,  for  he  stood 
in  their  rear.  The  locality  of  the  proceedings  is  a  matter  of  some  conse- 
quence. Suppose  these  disorderly  speakers  had  put  the  questions  which 
they  proposed  in  some  corner  of  the  house,  or  in  the  lobby,  would  that 
have  been  in  order  ?  1  remember  to  have  heard  of  a  bragging  fellow, 
who,  having  been  called  to  order  by  the  court,  boasted  that  he  had  shaken 
his  fist  at  the  judge,  and  called  him  a  tyrant.     But,  inquired  somebody. 


MR.  PRESTON'S  ARGUMENT.  293 

"  How  did  he  take  it  ?"  "  Oh,  he  said  nothing,"  was  the  reply.  But 
being  forced  to  explain,  he  acknowledged  that  he  had  shaken  his  fist  under 
his  cloak,  and  called  the  judge  a  tyrant  below  his  breath.  All  the  pro- 
ceedings of  these  men  were  conducted  in  the  rear  of  the  Assembly,  be- 
hind the  great  body  of  the  members;  and  they  all  turned  away  from  the 
Moderator  to  address  themselves  to  the  New-school  party.  A  rare  spec- 
tacle indeed! 

I  proceed  to  make  still  another  point  of  order,  and  a  point  of  paramount 
importance.  The  accumulation  of  these  points  shows  clearly,  that  when- 
ever persons  attempt  to  do  a  violent  act,  and  press  on  with  haste  and  tu- 
mult to  its  consummation,  they  necessarily  fall  into  gross  irregularity. 
Now,  our  opponents  cannot  pretend  to  stand  under  the  rule  which  I  am 
about  to  mention.  If  this  point  of  order  be  made  in  any  Assembly,  it 
prevails  and  rides  over  every  thing  else,  and  at  once  resolves  the  house 
into  a  committee  of  the  whole,  to  determine  it.  Even  in  the  torrent  and 
tempest  of  party  conflict,  though  a  speaker  be  upon  the  floor,  the  single 
word  "  Order!"  from  the  presiding  officer,  or  any  member,  at  once  arrests 
the  proceedings.  The  speech  is  interrupted,  until  the  question  of  order 
has  been  decided  upon.  When  Mr.  Cleaveland  rose,  with  all  that  gala- 
matias  of  a  "  whereas,"  and  so  on,  cries  of  order  instantly  burst  forth  from 
the  very  point  from  which  they  might  have  been  expected,  and  were  fre- 
quently reiterated.  But  in  spite  of  this  point  of  order,  he  proceeded. 
What  was,  in  this  case,  the  duty  of  those,  who  claim  what  they  are  con- 
tending for,  under  a  rule  of  order  ?  On  the  first  echo  of  that  all  control- 
ling, that  emphatic  word,  they  should  have  stopped,  and  awaited  in  silence 
the  decision  of  the  matter,  or  taken  their  seats.  It  was  not  necessary  to 
thisj  that  the  Moderator  should  cry  order:  the  cry  was  equally  efficacious 
from  whatever  quarter  it  proceeded.  It  instantly  became  the  express  and 
solemn  duty  of  the  presiding  officer,  to  insist  on  the  point  of  order  thus 
raised.  It  was  his  duty  to  stay  the  proceedings  at  all  hazards,  and  to  in- 
voke the  aid  of  every  member  present.  Whatever  business  was  before 
the  house  was  instantly  superseded,  and  there  should  have  been  a  solemn 
pause  to  try  the  question  of  order.  Now,  in  the  teeth  of  the  authority 
of  the  Moderator,  in  open  violation  of  the  rights  of  every  member  of  the 
Assembly,  and  trampling  under  foot  this  most  essential  rule,  Mr.  Cleave- 
land prosecuted  his  disorderly  proceeding.  For  all  the  purposes  of  this 
argument,  it  is  no  matter  whether  he  was  really  in  order,  or  not.  From 
the  instant  the  Moderator  called  "Order!"  though  perhaps  he  may  have 
been  wrong,  until  the  question  was  finally  decided,  Mr.  Cleaveland  was 
out  of  order.  What?  Are  we  told  that  we  could  not  in  any  way  pro- 
tect ourselves;  that  we  were  utterly  powerless;  that  when  we  were  crying 
"Order!"  and  the  Moderator  shocked  and  agitated  as  he  was,  was  also 
calling  "  Order!"  and  vainly  endeavouring  to  stay  the  torrent,  the  pro- 
ceeding being  pushed  forward  in  spite  of  all  our  efforts,  we  are  now,  by 
intendment  of  law,  bound  by  it,  considered  to  have  yielded  our  acqui- 
escence ?  Why,  by  the  mere  cry  of  "  Order!"  Mr.  Cleaveland  was  put 
out  of  order,  and  no  member  of  the  Assembly,  who  had  the  least  regard 
for  the  rights  of  the  Assembly,  could  have  ventured  to  vote  upon  the  reso- 
lution. Had  he  done  so,  he  would  have  been  partaking  in  a  riot.  There 
were  cries  of  order  from  every  side,  and  yet,  by  intendment  of  law,  tlie 
question  is  to  be  considered  as  legally  put!     I  read  a  provision  on  this 


294  PRESBYTERIAN  CHURCH  CASE. 

subject,  from  the  General  Rules  for  Judicatories. — Append,  to  Const. 
R.  28. 

"  If  any  member  act  in  any  respect,  in  a  disorderly  manner,  it  shall  be 
the  privilege  of  any  member,  and  the  duty  of  the  Moderator,  to  call  him 
to  order." 

Now,  the  privilege  of  the  member,  and  the  duty  of  the  Moderator,  do 
not  depend  upon  the  question,  whether  the  person  called  to  order  is  really 
in  order  or  not.  The  propriety  of  the  call  does  not  rest  on  the  fact  of 
his  being  out  of  order,  but  upon  the  Moderator  or  member's  considering 
him  so.  Whoever  thinks  another  out  of  order,  has  a  right  to  call  him  to 
order,  and  to  have  the  point  immediately  decided.  Now,  when  Mr. 
Cleaveland  rose,  he  was  thus  called  to  order.  The  Moderator  called  him 
to  order,  and  with  his  hammer,  as  one  of  the  insignia  of  his  otiice,  rapped 
upon  the  desk  before  him.  The  members,  on  all  sides,  in  the  exercise  of 
their  privilege  and  duty,  cried  "Order!"  In  the  midst  of  these  repeated 
calls,  in  derogation  of  the  authority  of  the  Moderator,  in  violation  of  the 
rights  of  the  individual  members,  in  contempt  of  all  decency,  Mr.  Cleave- 
land proceeded  to  put  the  question,  on  his  own  responsibility.  And 
was  the  resolution  still  carried  by  intendment  of  law?  Did  we  yield 
our  consent? 

There  was  another  point  of  order  made  necessary  by  the  general  call 
to  order.  It  is  in  evidence,  gentlemen,  that  Dr.  Beman,  Dr.  Fisher,  Dr. 
Mason,  and  Mr.  Gilbert,  with  many  others  of  the  New-school  part)'-,  were 
standing.  Even  the  new  Moderator,  although  he  is  said  to  have  been 
unquestionably  in  the  chair,  was  standing  up  in  the  aisle,  at  least  forty 
feet  from  any  chair.  From  every  quarter,  persons  rushed  forward  to- 
wards the  scene  of  this  most  quiet,  and  Christian-like  organization.  They 
burst  from  the  pews,  crowded  over  the  tops  of  the  pews,  and  all  stood  in 
the  midst  of  the  house.  Now,  there  is  a  rule,  that  whenever  more  than 
three  members  are  standing,  they  are  ipso  facto  out  of  order.  The  Old- 
school  party  might,  therefore,  have  sent  forth  a  universal  cry  of  "Order!" 
and  those  who  stood  to  the  end,  notwithstanding  these  cries,  were  perpe- 
trating a  gross  disorder.  I  will  read  the  rule  to  which  I  have  referred. 
Append,  to  Const.  R.  27. 

"When  more  than  three  members  of  the  judicatory  shall  be  standing 
at  the  same  time,  the  Moderator  shall  require  all  to  take  their  seats,  the 
person  only  excepted  who  may  be  speaking." 

This  being  the  law  of  the  Assembly,  every  member  has  a  right  to  call 
for  its  enforcement;  and  whenever,  in  any  body,  there  is  a  cry  of  "  Or- 
der!" the  proper  question  is,  "  Who  is  out  of  order?"  Then  it  might  be 
answered  that  more  than  three  members  are  standing,  as  in  this  case, 
where  not  only  more  than  three,  but  the  whole  association  of  the  New- 
school,  or,  at  least,  a  majority  of  them,  were  standing,  and  rushing  to- 
gether; and  the  Moderator  would  be  bound  to  restore  order,  before  any 
other  business  was  attended  to. 

But  there  is  a  graver,  a  more  deeply  important  consideration  which  this 
case  involves.  Heretofore  my  remarks  have  applied  equally  to  all  as- 
semblies of  gentlemen,  of  whatever  profession  the}^  may  be.  In  a  mere 
civil  assembly,  composed  of  politicians  and  men  of  the  world,  there  are 
no  special  obligations  resting  on  the  members,  but  those  arising  from  the 
rules  of  politeness,  and  from  the  regulations  necessary  for  the  transaction 


MR.  PRESTON'S  ARGUMENT.  295 

of  business.  But  the  clergy  are,  by  their  ordination,  set  apart  from  the 
world,  and  are  bound,  above  all  others,  to  regard  the  holy  doctrines  of 
peace  and  order.  The  business  of  their  lives,  and  the  habit  of  their  minds 
lead  them  to  examine  carefully  into  the  rules  of  propriety,  to  cultivate  a 
spirit  of  deference  to  authority,  and  of  meek  forbearance.  The  institu- 
tions of  the  Church  would  be  incomplete,  if  her  ministers  were  distin- 
guished from  others  only  by  the  outward  forms  of  these  institutions.  But 
more  has  been  exacted  from  the  ministers  of  religion,  than  from  the  mere 
children  of  the  world.  There  is  a  standing  rule  of  order  for  the  regula- 
tion of  all  the  judicatories  of  the  Church,  which  is  in  these  solemn  and 
hortatory  words: — Append,  to  Const.  R.  24. 

"  It  is  indispensable,  that  members  of  ecclesiastical  judicatories  main- 
tain grieat  gravity  and  dignity  while  judicially  convened;  that  they  attend 
closely  in  their  speeches,  to  the  subject  under  consideration,  and  avoid 
prolix  and  desultory  harangues: — and  when  they  deviate  from  the  subject, 
it  is  the  privilege  of  any  member,  and  the  duty  of  the  Moderator,  to  call 
them  to  order." 

In  addition  to  every  thing  exacted  from  the  members  of  mere  temporal 
assemblies,  great  gravity  and  dignity  of  behaviour  are  here  enjoined. 
Have  they  conformed  in  the  present  case  to  this  crowning  exhortation? 
Were  these  proceedings  characterized  by  the  gravity,  the  dignity,  the 
Christian  forbearance,  becoming  ministers  of  God  ?  Did  they  quietly 
keep  their  seats,  and  obey  the  orders  of  the  constituted  authorities  ?  This 
would  have  been  expected  from  even  an  assembly  of  politicians.  Yet  on 
them  would  have  rested  only  the  high  obligations  of  gentlemanly  charac- 
ter: the  rules  of  Christian  conduct  are  of  a  still  higher  import.  A  gen- 
tleman rises  and  declares  that  a  certain  proceeding  must  be  had  in  that 
place;  that  a  re-organization  is  necessary.  In  a  hurried  and  broken  voice, 
he  partly  reads  and  partly  recites,  interlarding  both  the  reading  and  reci- 
tation with  extemporaneous  remarks;  and  then,  his  hand  trembling,  and 
in  an  agitated  tone,  "  in  the  shortest  space  of  time,  and  the  fewest  words 
possible,"  even  of  these  few  words  but  one  here  and  there  being  caught 
by  most  of  the  auditors,  he  moves  that  Dr.  Beman  take  the  chair.  How 
is  this  proposition  received  by  that  grave  and  respectable  assembly  of 
men,  bowed  down  under  a  sense  of  their  solemn  responsibility,  and  sacred 
functions?  It  is  answered  by  a  shriek,  a  yell  of  "Aye!"  which  drowns 
every  call  to  order,  and  stuns  the  ear.  Does  Dr.  Beman  then  proceed 
gravely  to  take  the  chair  ?  He  rushes  from  the  pew  into  the  aisle,  re- 
treats down  the  aisle,  takes  his  stand  in  the  midst  of  his  party,  and  a 
chairman  without  a  chair,  a  Moderator  with  no  insignia  of  office,  he  pro- 
ceeds to  business,  without  even  a  single  call  to  order.  The  Assembly 
thus  organized  is  not  constituted  by  prayer.  Who  indeed  was  there 
among  them  all,  hardy  enough  to  address  the  God  of  peace,  and  ask  his 
blessing  on  that  hurried  and  boisterous  proceeding  ?  No,  by  these  grave 
and  orderly  gentlemen,  question  upon  question  is  put  and  seconded,  being 
succeeded  by  volley  after  volley  of  "Aye!"  "Aye!"  "Aye!"  shouted 
forth  by  men  rushing  from  every  part  of  the  house,  huddling  together  in 
confusion,  and  hurrying  onward  to  their  strange  destiny.  See  them 
dashing  and  foaming  through  the  open  portals,  and  when  they  have  passed 
by,  fearing  least  those  who  remain  behind  in  mute  astonishment,  do  not 


296  PRESBYTERIAN  CHURCH  CASE. 

know  that  they  have  gone,  sendhig  back  a  vociferous  messenger  to  an- 
nounce their  departure. 

And  did  these  gentlemen  "maintain  great  gravity  and  dignity  while 
judicially  convened  ?" 

The  space  of  time  which  these  proceedings  occupied  is  a  matter  of 
curious  inquiry,  and  the  consideration  of  it  may  assist  us  to  determine, 
whether,  supposing  the  questions  orderly  in  themselves,  we  had  an  op- 
portunity to  vote,  or  could  be  bound  by  intendment  of  law.  Order,  in 
parliamentary  language,  is  regular  succession  in  business,  and  nothing 
else.  To  decide,  then,  whether  certain  proceedings  were  in  order,  it  is 
necessary  to  inquire,  whether  the  time  which  they  occupied  was  sufficient 
for  them  to  be  perfected.  Now  what  was  the  space  of  time  which  elapsed 
between  Mr.  Cleaveland's  rising,  and  the  departure  of  the  New-school 
body  from  the  church  in  Ranstead  Court?  First  fix  this  in  your  minds, 
from  your  recollection  of  the  evidence,  remembering  that  it  was  intended, 
that  all  should  be  done  in  the  shortest  time  possible';  and  then  you  will 
inquire  whether  the  time  so  fixed  was  long  enough  for  every  thing  said 
to  have  been  done,  to  be  done  decently,  and  in  order.  I  think  the  time 
was  from  four  to  seven  minutes. 

Mi\  Meredith.  The  only  Episcopalian  examined,  said  twenty  mi- 
nutes. 

Mr.  Preston.  His  testimony  is  very  doubtful;  but,  gentlemen,  you 
must  make  your  own  conclusion  in  regard  to  the  matter,  and  then,  having 
ascertained  the  time,  see  what  was  done.  In  the  first  place,  Mr.  Cleave- 
land  made  a  sort  of  speech,  or  recitation:  you  have  here  ten  or  fifteen 
lines  of  confused  remarks.  Then  he  made  the  motion  that  Dr.  Beman 
should  take  the  chair,  put  the  question  upon  it  audibly  and  distinctly — 
some,  I  believe,  say  with  deliberation — first  in  the  affirmative,  and  then  in 
the  negative.  Then  a  motion  was  made,  for  the  appointment  of  tempo- 
rary clerks,  on  which  also  the  question  was  put  and  reversed.  Then  a 
nomination  for  Moderator,  with  the  question  on  Dr.  Fisher  put  and  re- 
versed; and  the  same  in  the  choice  of  clerks.  Last  of  all  came  the  mo- 
tion for  adjournment,  the  question  on  which  was  also  put  and  reversed. 
In  all  then,  from  fifteen  to  twenty  different  propositions  were  put  to  the 
Assembly,  were  put  audibly  and  distinctly,  as  is  alleged,  in  the  time 
limited,  whatever  that  may  be.  Now,  I  venture  to  say,  that  if  so  many 
propositions  were  put  in  any  time  suggested  by  any  one  of  the  witnesses, 
no  parliamentary  body  has  ever  before  proceeded  with  such  extraordinary 
despatch.  What  the  New-school  party  did,  if  we  are  to  credit  their  as- 
sertions, was  this:  They  dissolved  one  body,  and  completely  organized 
another,  all  in  due  form;  and  translated  every  vestige  of  power  from  one 
to  the  other — the  whole  in  from  four  to  seven  minutes.  It  was  the  crea- 
tion of  a  world  as  regards  the  Presbyterian  Church.  The  creation  of  our 
world  was  with  Omnipotence  a  work  of  six  days;  but  here  a  world  was 
annihilated,  as  well  as  a  world  created;  and  both  the  creation  and  annihi- 
lation occupied  but  from  four  to  seven  minutes! 

I  know,  may  it  please  your  Honour,  how  wearisome  are  these  minute 
investigations.  Nothing  but  the  exactions  of  duty  would  compel  me 
thus  to  exhaust  your  time,  and  as  I  fear  I  may  be  doing,  your  patience,  by 
such  inquiries.     But  I  see  where  the  case  presses  upon  our  opponents, 


MR.  PRESTON'S  ARGUMENT. 


297 


and  must  therefore  endeavour  still  farther  to  strengthen  the  position,  that 
their  proceedings  were  out  of  order.  I  think  that  I  am  not  going  be- 
yond the  exigency  of  the  cause.  I  have  proved  thern  out  of  order  by  a 
mass  of  collateral  evidence,  but  shall  now  endeavour  to  demonstrate,  that 
they  could  not  have  been  otherwise  than  out  of  order;  that  they  them- 
selves did  not  otherwise  intend;  that  they  were  acting  apart  from  us,  as 
a  separate  body,  and  it  cannot  now  avail  them  any  thing  to  assert  the  con- 
trary. I  will  show  that  in  truth,  these  gentlemen  never,  either  then  or 
since,  considered  themselves  as  acting  in  conjunction  with  us.  I  will 
show,  and  defy  them  to  contradict  the  proof,  that  they  were  entirely 
segregated  from  us.  After  this  investigation,  it  will  be  impossible  for 
them,  I  think,  to  pretend  to  be  the  inheritors  of  the  property  and  name 
of  the  Presbyterian  Church.  I  know  that  this  will  strike  some  of  you, 
gentlemen,  as  very  bold  language,  but  you  will  find  that  the  point  will 
go  through  and  through  their  case.  I  propose  to  give  it  a  blow  upon  the 
head,  and  expect  to  see  it  tremble  throughout  the  whole  nervous  system. 
I  say  that  the  New-school  party  did  not  consider  themselves  as  part  and 
parcel  of  the  same  body  with  us. 

The  first  witness  which  I  shall  examine  on  this  subject  is  Mr.  Cleave- 
land.  What  says  he?  The  paper  which  is  found  on  the  New-school 
Minutes  is  not  the  same  that  he  read,  wliich  it  is  very  desirable  should  be 
given  to  the  public  eye;  but  it  has  been  expressly  adopted  by  the  New- 
sehool  party,  as  containing  the  substance  of  the  original.  This  is  its  lan- 
guage: 

"That  as  the  Commissioners  to  the  General  Assembly  for  1S3S,  from 
a  large  number  of  Presbyteries,  had  been  refused  their  seats;  and  as  we 
had  been  advised  by  counsel  learned  in  the  law,  that  a  constitutional  or- 
ganization of  the  Assembly  must  be  secured  at  this  time  and  in  this  place, 
he  trusted  it  would  not  be  considered  as  an  act  of  discourtesy,  but  merely 
as  a  matter  of  necessity,  if  we  now  proceed  to  organize  the  General  As- 
sembly for  1838,  in  the  fewest  words,  the  shortest  time,  and  with  the  least 
interruption  practicable.     He  therefore  moved,  &c." 

They  have  thought  proper  to  give  us  the  substance  only  of  this  re- 
markable paper:  we  have  in  vain  made  efforts  to  get  at  the  original,  or  an 
exact  copy.  "  As  we  had  been  advised  by  counsel,"  says  Mr.  Cleaveland. 
Who  had  been  advised  ?  The  General  Assembly  of  which  by  intend- 
ment of  law  we  formed  a  part  ?  Had  ive  the  Old-school  been  advised  ? 
Did  ive  institute  the  proceedings  ?  Did  Mr.  Cleaveland  mean  that  we 
had  been  advised  ?  It  is  evident  that  this  was  not  his  meaning;  that  he 
did  not  consider  us  a  part  of  those  whom  he  addressed.  But  let  us  look 
at  the  remaining  portion  of  the  paper.  "  He  trusted  it  would  not  be  con- 
sidered as  an  act  of  discourtesy."  Discourtesy  ?  To  wiiom  ?  Surely 
not  to  his  own  party — those  who  had  advised  and  prompted  the  measure; 
but  to  us,  the  members  of  the  Old-school.  His  language  was,  "  I  hope 
that  you,  gentlemen  of  the  Old-school  party,  will  not  consider  us  discour- 
teous to  you,  if  we  now  proceed  to  organize  the  General  Assembly  of 
1838."  Can  any  thing  be  more  clear  than  that  they  intended  a  select  or- 
ganization of  a  set  of  men  to  whom  we  did  not  belong  ?  Was  there  not 
in  these  words  a  plain  declaration,  that  they  were  about  to  form  a  separate 
organization;  and  an  appeal  to  our  courtesy,  that  we  would  not  interrupt 

38 


298  PRESBYTERIAN  CHURCH  CASE. 

them  ?  Let  us  suppose,  that  without  informing  the  Old-school  of  their 
real  design,  they  had  requested  permission  to  use  the  house  for  the  pur- 
pose of  organizing  themselves,  and  permission  having  been  accorded,  had 
taken  advantage  of  this  courtesy,  to  deprive  us  of  our  rights  by  a  legal 
intendment:  of  what  gross  fraud  would  they  have  been  guilty!  No,  this 
had  not  at  that  time  entered  their  heads:  they  did  not  deliberately  set  a 
trap,  a  pit-fall,  in  which  their  brethren  were  to  be  caught  by  legal  intend- 
ment. Suppose  that  we  had  acquiesced,  being  requested  to  stand  silent, 
while  they  performed  a  certain  act;  and  that  they  now  came  into  court, 
and  said  "  Gentlemen  we  deluded  you.  You- agreed  to  remain  silent,  and 
this  can  be  construed  into  an  acquiescence.  We  can  make  it  appear  that, 
by  intendment  of  law,  the  vote  was  put  to  you,  and  you  assented  to  our 
act.^'  Would  you  give  them  your  verdict  ?  Why,  if  we  had  voted  upon 
their  resolutions,  after  permission  had  been  asked  and  given,  for  them  to  . 
have  the  use  of  the  house,  they  would  have  complained  of  us  as  disorderly 
and  riotous:  they  would  have  said,  that,  after  promising  not  to  interrupt 
their  proceedings,  we  had  assailed  them  and  voted  them  down;  that  we 
would  not  allow  them  to  take  advantage  of  the  only  chance  that  they  had 
of  engrafting  themselves  on  the  Assembly  of  1837,  as  they  had  been  ad- 
vised to  do  by  counsel  learned  in  the  law.  The  preceding  motions  were 
proposed  to  us  through  our  Moderator,  but  Mr.  Cleaveland's  was  never 
proposed  to  us  in  any  manner. 

Let  me  suppose  still  another  case: — Suppose  that  his  paper  had  not  on 
its  face  exhibited  his  intention;  and  that  in  order  to  entrap  us,  the  other 
party  had  sent  a  messenger,  who  had  informed  us  that  they  intended  to 
make  a  separate  organization,  and  begged  that  we  would  remain  silent; 
that,  on  this  understanding,  we  had  complied  with  the  request.  And 
suppose  they  should  now  say,  "We  have  deluded  you:  you  rested 
on  a  false  security."  Why,  gentlemen,  this  would  have  been  setting  a 
legal  steel-trap.  Such  is  not  the  conduct  of  honest,  honourable,  Christian 
gentlemen.  No  court  would  sustain  so  monstrous  a  fraud.  Yet  I  cannot 
see  that  that  case  is  stronger  than  the  one  before  us,  if  our  opponents 
really  did  what  they  now  pretend.  Mr.  Cleaveland  gets  up  in  the  rear 
of  the  Old-school  party,  and  says  that  this  time  and  place  are  of  very 
great  importance  to  him  and  his  friends;  that  he  hopes  we  will  not  con- 
sider it  discourteous,  if  he  should  proceed  with  a  small  matter  of  business; 
he  trusts  we  will  not  interrupt  him.  He  thought  it  necessary  to  make  a 
formal  apology  to  us;  and  his  words  certainly  implied  the  asking  of  per- 
mission to  do  what  he  contemplated:  it  was  a  matter  of  necessity,  and  he 
begged  that  it  might  not  be  considered  discourteous.  This  word,  "  we" 
clinches  upon  our  opponents  the  conclusion  that  they  intended  a  separate 
organization.  I  will  leave  no  dispute  respecting  the  manner  in  which 
they  considered  themselves  as  acting.  Out  of  their  own  mouths  shall 
you  convict  them.  Here  is  a  Pastoral  Letter,  in  which  tlie  Assembly  of 
the  New-school  addressed  all  the  Presbyterian  Churches  of  Christendom, 
with  a  solemn  exposition  of  what  they  had  done.  I  venture  to  say,  be- 
fore I  commence  reading  it,  that  if  you  find  them  really  to  have  done 
what  they  here  say  they  have,  it  is  utterly  impossible  that  you  should 
give  them  a  verdict.  In  this  Pastoral  Letter,  they  first  advert  to  the  diffi- 
culties that  had  sprung  up  in  the  Church,  and  lament  over  them.     They 


MR.  PRESTON'S  ARGUMENT.  399 

recognise  the  existence  of  two  distinct  parties,  and  the  differences  that  had 
arisen  betwen  them.  They  then  state  the  efforts  that  they  had  made  to 
restore  harmony,  union,  and  peace,  to  these  two  divisions  of  the  Church. 

"  As  the  result  of  these  efforts,"  say  they,  "  to  change  the  terms  of  sub- 
scription and  union,  the  General  Assembly  of  1837,  "  convinced  that  the 
separation  of  the  parties  was  the  only  cure,"  and  "  that  a  separation  by 
personal  process  was  impossible,  or,  if  possible,  tedious,  agitating,  and 
troublesome  in  the  highest  degree,"  proceeded  without  charges,  citation, 
witnesses,  or  a  judicial  trial,  to  separate  four  Synods  and  one  Presbytery 
from  the  Presbyterian  Church.  In  these  circumstances,  apprised  by 
counsel  of  the  unconstitutionality  of  the  disfranchising  act,  and  advised  of 
a  constitutional  mode  of  organization,  we  did — "  "  fVe  did?"  Who 
are  •'  we?"  Who  had  been  "  apprised  by  counsel?"  We,  the  Old-school? 
Had  we,  by  intendment  of  law,  taken  advice  of  counsel?  It  was  the 
New-school  that  had  been  so  advised.  "  We,"  certainly  cannot  mean  the 
whole  General  Assembly,  for  at  the  time  here  spoken  of,  the  body  was 
not  in  existence.  "  We  did,  in  a  meeting  for  consultation  and  prayer,  oa 
■the  15th  day  of  May,  1S3S,  send  the  following  proposal  to  a  large  num- 
ber  of  commissioners   to    the   Assembly,  met   in  another  place " 

Were  they  acting  as  the  Assembly,  before  the  Assembly  met  in  Ranstead 
Court?  This  meeting  for  consultation  was  not  identical  with  the  Assem- 
bly. We  cannot  by  any  trick  be  made  a  part  of  it.  "  We,"  the  whole 
body  of  the  commissioners,  could  not  have  sent  a  "  proposal  to  a  large 
number  of  commissioners  to  the  Assembly  met  in  another  place."  Well, 
"  we  did"  this,  and  then,  "  it  was  resolved  by  the  meeting,"  that  is,  "  we" 
resolved,  "  That  should  a  portion  of  the  commissioners  to  the  next  Gene- 
ral Assembly  attempt  to  organize  the  Assembly,  without  admitting  to 
their  seats  commissioners  from  all  the  Presbyteries  recognised  in  the  or- 
ganization of  the  General  Assembly  of  1837,  in  all  respects  according  to 
the  constitution,  &c."  The  commissioners  present  were  to  do  this. 
Present  where?  Not  in  the  Assembly,  but  in  the  consultative  meeting. 
"We,"  who  had  met  for  prayer  and  consultation — "we,"  who  had  been 
advised  by  counsel — "  we,"  the  New-school,  resolved,  "  That  should  a 

portion  of  the  commissioners  to  the  next  General  Assembly "   What 

portion?  those  who  were  present?  No,  but  those  who  were  meeting,  "in 
another  place" — the  Old-school — that  should  they  attempt  a  certain  thing, 
it  will  be  our  duty — "  the  duty  of  the  commissioners  present" — "to  or- 
ganize the  General  Assembly  of  1838."  Such  was  their  resolution  be- 
fore the  meeting  of  the  Assembly,  and  a  little  farther  on  they  say,  "By 
this  answer,  all  prospect  of  conciliation,  or  an  amicable  division  being 
foreclosed,  we" — the  same  "  we" — "  did  after  mature  deliberation  and 
fervent  prayer,  proceed,  at  a  proper  time  and  place,  to  organize,  in  a  con- 
stitutional manner,  the  Assembly  of  1838."  Yet  after  all,  ive  acted  with 
them  by  intendment  of  law;  ive  sent  a  communication  to  ourselves,  and 
returned  ourselves  an  answer;  and  ive  proceeded  to  organize  the  Assem- 
bly. Have  I  not  proved,  gentlemen,  that  they  were  not  part  or  parcel  of 
us;  that  they  never  intended  that  we  should  act  with  them,  or  gave  us  a 
chance  so  to  do?  If  their's  is  a  perfect  organization,  it  must  be  for  some 
reason  which  they  did  not  at  the  time  contemplate. 
(Here  the  jury  were  allowed  a  recess  of  ten  minutes.) 
I  am  aware  how  yev^  tedious  and  exhausting  this  inquiry  is  becoming, 


300  PRESBYTERIAN  CHURCH  CASE. 

but  I  feel  that  I  am  performing  a  solemn  duty.  The  case  is  one  of  very 
great  consequence,  and  exacts  from  us  a  careful  discharge  of  our  obliga- 
tions. I  must  therefore  endeavour  to  omit  nothing — to  clear  up  every 
thing.  I  stand  here  to  defend,  not  merely  the  immediate  parties  to  this 
suit,  but  thousands  of  Presbyterians  scattered  thickly  over  the  whole 
broad  territory  of  the  United  States.  The  prayers  of  a  thousand  pulpits 
bear  this  cause  as  their  burden  up  to  the  throne  of  grace.  I  crave  there- 
fore, however  exhausted  you  may  feel,  your  patient  attention,  and  your 
indulgence. 

I  have  now  nearly  done  with  the  consideration  of  the  points  of  order 
involved  in  this  case,  and  it  seems  to  me,  that  I  have  effectually  demolished 
the  proceeding  of  our  opponents.  However,  though  the  monster  is  beaten 
down  to  the  ground,  it  will  be  well  to  give  him  one  or  two  more  blows. 
Mr.  Cleaveland  was  out  of  order,  from  the  fact,  that  previously  to  his 
rising,  a  call  had  been  made  upon  the  Moderator  to  enforce  a  standing  rule 
of  the  Assembly,  that  the  first  business  of  the  bod}^  should  be  the  ap- 
pointment of  a  Committee  of  Elections.  It  appears  from  the,  testimony, 
that  a  motion  had  been  made  for  the  appointment  of  that  committee  be- 
fore Mr.  Cleaveland  rose.  Now  if  such  a  motion  was  actually  pending 
before  the  body,  any  other  question  raised  while  it  was  pending,  was  dis- 
orderly, unless  it  had  no  relation  to  the  subject  matter  of  the  former. 
The  appointment  of  a  Moderator  is  not  a  privileged  question,  nor  was  it 
at  all  german  to  the  proposition  which  was  before  the  house,  as  being  an 
amendment,  or  otherwise.  Besides,  in  all  parliamentary  bodies  the  stand- 
ing orders  which  they  have  established  must  invariably  precede  and  over- 
ride every  other  business.  And  a  formal  vote  that  such  an  order  shall  be 
obeyed  is  not  necessary,  but  the  call  of  a  single  member  is  sufficient  to 
compel  its  enforcement;  and  his  call  must  of  necessity  prevail  against  any 
other  proposition  whatever.  These  are  what  are  called  privileged  ques- 
tions, or  subsisting  orders  of  the  house.  Now  the  General  Assembly  has 
such  a  subsisting  order  to  this  effect: — Min.  \S^Q,p.  40. 

"  The  first  act  of  the  Assembly,  when  thus  ready  for  business"  (i.  e. 
immediately  after  the  report  of  the  clerks,  or  Committee  of  Commissions) 
"shall  be  the  appointment  of  a  Committee  of  Elections,  whose  duty  it 
shall  be  to  examine  all  informal  and  unconstitutional  commissions,  and  re- 
port on  the  same  as  soon  as  practicable." 

This  was  a  subsisting  rule  of  the  house,  and  its  enforcement  might  be 
called  for  by  any  member,  no  matter  whom;  and  even  if  no  call  had  been 
made,  it  was  the  duty  of  the  Moderator  to  enforce  it.  The  execution  of 
the  rule  was  the  first  orderly  act  which  the  Assembly  could  perform,  and 
was  a  matter  of  course — a  privileged  proceeding  of  fundamental  impor- 
tance. Any  other  business,  which  might  have  been  allowed  a  priority, 
would  have  been  ipso  facto  out  of  order,  even  though  the  attention  of  the 
house  had  not  been  called  to  its  subsisting  rule.  Any  member,  I  have 
said,  may  make  the  point  of  order,  and  insist  upon  its  being  first  disposed 
of  Now,  in  this  case,  not  only  after  the  execution  of  the  established  re- 
gulation had  been  called  for,  did  Mr.  Cleaveland  make  a  motion  in  de- 
fiance of  the  regulation,  but  after  being  called  to  order,  and  informed  of 
the  existence  of  the  rule,  persisted  in  his  purpose.  The  Moderator,  Dr. 
Elliott,  has,  on  his  oath,  informed  you  that  he  could  not  enforce  this 
standing  order,  because  of  Mr.  Cleaveland's  persistence.     He  says  dis- 


MR.  PRESTON'S  ARGUMENT.  3qj 

tinctly,  that  he  was  called  upon  to  enforce  it,  but  was  prevented  from  doing 
so.  And  further,  that  it  was  enforced,  as  soon  as  Mr.  Cleaveland  with 
his  friends  had  retired  from  the  house.  Now,  the  rule  in  regard  to  stand- 
ing orders,  which  I  have  laid  down,  is,  in  its  application,  the  commonest 
in  the  world.     Hatsell  gives  it  in  these  words: — 2  Hatsell,  11.3. 

"  Indeed  the  doctrine  of  any  one  Member  having  a  right  1o  insist  upon 
any  thing  appears  to  be  absurd;  for  another  Member  may  insist  upon 
the  contrary;  and  therefore,  in  all  cases  whatever,  the  only  method  of 
deciding  whether  any  thing  shall,  or  shall  not  be  done,  or  how  it  shall  be 
,done,  must  be  by  moving  a  question  to  the  House,  that  question  to  be 
seconded,  and  proposed  from  the  chair,  and  the  sense  of  the  House  taken 
upon  it." 

•  Then,  in  a  note  to  this  passage,  we  find  the  following — "  The  only  ex- 
ception to  this  is,  when  a  member  calls  for  the  execution  of  a  subsisting 
order  of  the  House.  Here  the  matter  having  been  already  resolved  upon, 
and  ordered  by  the  House,  any  member  has  a  right  to  insist  that  the 
Speaker,  or  any  other  person,  whose  duty  it  is,  shall  carry  that  order  in- 
to execution,  and  no  debate  or  delay  can  be  had  upon  it;  and  this  fre- 
quently happens  in  the  cases  of  admitting  strangers  into  the  gallery — the 
clearing  the  lobby  of  footmen — telling  the  House,  when  notice  is  taken 
that  forty  members  are  not  present;  &c.  every  member  being  entitled  to 
have  the  orders  and  resolutions  of  the  House  carried  into  immediate  ex- 
ecution; and  in  this  case,  the  member  does  not  properly  make  any  tuo- 
tion,  but  only  takes  notice  that  the  orders  of  the  House  are  disobeyed." 

You  see  then  that  for  the  enforcement  of  a  law  of  the  house  any  mem- 
ber may  call.  And  how  can  the  house  get  clear  of  the  difficulty,  if  it 
does  not  choose  to  conform  to  such  a  rule?  Only  by  repealing  it,  by  a 
vote  of  a  majority,  or  two  thirds,  according  as  the  regulations  may  re- 
quire. So  long  as  the  rule  subsists,  any  member  may  call  for  and  compel 
its  execution.  To  give  a  case  in  point:  if  the  General  Assembly,  or 
any  parliamentary  body,  should  decide  that  the  order  of  the  day  at 
twelve  o'clock,  should  be  the  appointment  of  a  Committee  of  Elections, 
the  sound  of  the  clock  striking  the  hour  of  noon  must  arrest  all  business — 
even  a  member  in  the  middle  of  his  speech.  Or,  if  the  tongue  of  the 
inanimate  instrument  should  fail  to  make  him  pause,  he  would  instantly 
be  called  to  order.  And  even  if  the  house  should  prefer  to  listen  still 
longer  to  the  speech,  any  one  member  might  compel  all  the  rest  to  at- 
tend to  the  order  of  the  day,  unless  the  rule  should  be  suspended  by  a 
solemn  vote.  The  experience  of  parliamentary  bodies  has  shown  that  it 
is  better  always  to  decide  such  matters  beforehand,  and  not  leave  them  to 
the  caprice  of  the  moment.  Therefore  the  call  for  the  execution  of  the 
standing  rule  of  the  Assembly,  in  regard  to  the  appointment  of  a  Com- 
mittee of  Elections,  was  in  order,  and  no  other  business  could  come  be- 
fore it:  it  crushed  every  thing  else,  and  especially  the  proposition  of  Mr. 
Cleaveland.  While  it  was  pending,  no  man,  not  even  the  Moderator 
himself,  had  a  right  to  propose  any  other  question.  And  if  another  had 
been  proposed,  the  members  would  not  have  been  obliged  to  give  it  their 
attention,  and  would  not  be  bound  by  a  vote  upon  it:  they  could  not  be 
in  possession  of  one,  while  another  was  before  them.  You  cannot  take 
the  sense  of  a  house  on  more  than  one  question  at  a  time.  Yet  during 
the  time  a  question  oiyi  Commitee  of  Elections  was  pending,  Mr.  Cleave- 


302  PRESBYTERIAN  CHURCH  CASE. 

land  and  his  friends  proposed  half-a-dozen  others,  and  now  say  that  they 
took  the  sense  of  the  Assembly  upon  them  all.  Well,  if  the  members 
had  voted — every  one  of  thei'n — the  Moderator  being  opposed  to  the  pro- 
ceeding, and  endeavouring  to  enforce  the  subsisting  rules  of  the  house,  I 
maintain  that  the  decision  of  the  Moderator  would  have  been  right,  and 
the  whole  house  besides  in  the  wrong.  I  make  this  point  of  order,  on 
the  ground  of  the  standing  rule  of  the  Assembly,  and  the  authority  of 
Hatsell. 

So  far  as  Mr.  Cleaveland's  motion  is  concerned,  I  here  dismiss  the 
question  of  order.  I  have  greatly  deceived  myself,  if  I  have  not  demon- 
strated, that,  in  many  particulars  it  was  disorderly,  and  that  his  proceed- 
ing must  be  considered  as  the  mere  interference  of  an  unauthorized  indi- 
vidual. I  now  propose  to  make  a  point  of  order  applicable  to  both  Cleave- 
land  and  his  colleagues.  If  I  can  establish  this  point  the  relators  must  be 
turned  out  of  court.  Mr.  Cleaveland  made  his  motion,  on  the  ground 
that  the  constitutional  officers  of  the  Assembly  4iad  refused  to  do  their 
duty.  Dr.  Patton,  Dr.  Mason,  and  Mr.  Squier,  had  all  offered, resolutions 
previously  to  the  full  organization  of  the  Assembly,  and  for  refusing  to 
entertain  these  resolutions  they  say  the  officers  were  removed.  They 
proceeded  to  organize  the  Assembly,  because  Dr.  Elliott  had  declared 
certain  motions  out  of  order,  until  the  organization  had  been  completed. 
What  do  you  think,  gentlemen,  of  their  completing  the  organization  of 
their  Assembly  before  passing  the  motions?  They  dissolved  our  body, 
because  we  would  not  perform  a  certain  act,  which  they  said  was  essential 
to  our  existence;  yet  they  themselves  afterwards  neglect  its  performance. 
After  choosing  Dr.  Beman  chairman,  or  temporary  Moderator  in  the  place 
of  Dr.  Elliott,  they  proceed  to  elect  their  officers,  and  to  organize  the 
body,  and  then  adjourn.  Not  until  after  all  this  had  been  done,  were  Dr. 
Patton's  resolutions  introduced  and  passed  upon.  fVe  cannot  organize  an 
Assembly,  because  we  have  excluded  certain  resolutions  or  certain  per- 
sons; but  they  can  organize  themselves  before  admitting  these  same  per- 
sons or  resolutions.  They  declare  their  Assembly  organized;  then  it  is 
moved  that  they  adjourn,  and  the  motion  is  carried.  "  The  Moderator 
then,"  says  the  New-school  Minute,  "audibly  announced  that  the  General 
Assembly  was  so  adjourned,  and  gave  notice,  that  any  commissioners  who 
had  not  presented  their  commissions  should  do  so  at  the  First  Presbyte- 
rian Church." 

"The  Assembly  being  again  met  at  the  lecture  room  of  the  First  Pres- 
byterian Church,  Dr.  Patton  again  offered  his  preamble  and  resolutions, 
as  follows,  which  were  unanimously  adopted." 

Remember  that  it  was  for  a  refusal  to  admit  these  resolutions,  that  our 
Moderator  and  clerks  were  turned  out  of  office,  and  the  Assembly  re- 
organized out  of  its  original  elements.  Remember  too,  that  the  delegates 
from  the  four  exscinded  Synods,  the  rejection  of  whom  was  complained 
of,  all  actually  voted  on  the  several  questions  put  by  Mr.  Cleaveland,  Dr. 
Beman,  and  Dr.  Fisher,  and  that  after  every  one  of  these  questions  had 
been  finally  determined  a  resolution  was  passed  that  they  should  be  al- 
lowed to  vote!  First,  our  opponents  affirm,  that  the  Assembly  cannot  he 
organized  until  certain  names  are  added  to  the  roll,  and  on  this  account 
repudiate  our  organization;  then  they  organize  themselves,  proceed  to 
business,  and  afterwards  add  these  names  by  vote.      Is  not  this  blowing 


MR.  PRESTON'S  ARGUMENT.  3Q3 

hot  and  cold  with  the  same  breath  ?  Every  one  must  start  back  from  the 
monstrosity  of  such  a  proceeding.  These  men,  after  completing  their  or- 
ganization, passed  upon  a  resolution  proposing  the  admission  of  the  dele- 
gates from  the  four  Synods — the  very  thing  which  we  ourselves,  from  the 
beginning,  had  proposed  to  do:  we  had  never  refused  to  do  it. 

Yes,  may  it  please  your  Honour,  they  censure  the  Moderator  of  our 
Assembly,  divest  him  of  his  dignity,  turn  out  our  clerks,  neck  and  heels, 
and  then,  by  their  own  vote,  show  that  the  commissioners,  because  of 
whose  rejection  by  the  Moderator  and  clerks,  they  proceeded  thus,  were 
not  entitled  to  their  seats  until  an  act  of  the  whole  Assembly  had  admit- 
ted them.  By  the  last  of  Dr.  Patton's  resolutions,  the  clerks — the  new 
clerks — are  directed  "  to  form  the  roll  of  the  General  Assembly  of  1838, 
by  including  therein  the  names  of  all  commissioners  from  Presbyteries 
belonging  to  the  Presbyterian  Church,  not  omitting  the  commissioners 
from  the  several  Presbyteries  within  the  bounds  of  the  Synods  of  Utica, 
Geneva,  Genesee,  and  the  Western  Reserve."  In  virtue  of  this  act  of 
adoption,  came  in  these  rejected  members,  a  chance  to  pass  such  an  act 
not  having  been  given  to  us;  and,  wonderful  anomaly!  all  of  them  voted 
on  the  question  of  their  own  admission!  Such  are  the  difficulties  to  which 
our  opponents  are  driven. 

Oh  !  what  a  tangled  web  we  weave, 
When  first  we  practice  to  deceive  ! 

They  have  been  caught  in  their  own  trap — have  subverted  their  own 
principles.     I  leave  Mr.  Cleaveland  to  you,  gentlemen  of  the  jury. 

I  now  take  up  the  whole  of  the  proceedings  of  the  organization  in 
1838.  I  have  not  as  yet  consumed  so  long  a  time  as  my  learned  friend 
did  in  his  exordium;  the  substance  of  our  argument,  however,  will  proba- 
bly occupy  as  much  space  as  the  preliminaries  of  the  other  side.  The 
first  remark  which  I  make  upon  the  organization  of  the  Assembly, 
on  the  17th  of  May,  in  the  church  of  Ranstead  Court,  is  this:  If  the  im- 
pugned proceedings  of  1837  were  valid,  and  can  be  vindicated,  then,  in 
any  and  every  point  of  view,  the  Old-school  organization  of  1838  v/as 
correct  and  constitutional.  Farther,  supposing  the  acts  of  1837  as  un- 
constitutional as  you  please,  still  our  organization  in  183S,  either  with  or 
without  those  acts,  was  substantially  correct,  and  can  be  vindicated  in  a 
court  of  law.  By  the  resolutions  of  the  Assembly  of  1837,  the  commis- 
sioners from  four  Synods  were  stricken  from  the  roll,  for  want  of  a  pro- 
per constituency.  By  a  solemn  act  of  that  body,  they  were  decided  and 
declared  to  be  no  part  or  parcel  of  it.  Here  two  questions  arise,  and  let 
me  distinguish  between  them.  First,  was  the  original  act  of  exclusion 
invalid?  Next,  supposing  it  so,  what  was  the  duty  of  the  Moderator  and 
clerks,  who  presided  over  the  organization  of  the  Assembly  of  1838? 
Both  these  questions  I  shall  examine,  beginning  with  the  last. 

What  was  the  duty  of  those  elements  of  the  Assembly  of  1837,  which 
still  subsisted  in  1838?  What  were  these  elements?  The  Moderator 
and  clerks,  who  were  the  only  surviving  relics  of  the  former  body.  Who 
is  the  Moderator?  An  executive  officer  of  the  Assembly.  It  is  necessary 
that  you  should  understand  exactly  the  nature  of  his  office.  His  duties 
are  prescribed  in  the  ^rm  of  Government,  Chap.  XIX. 


304  PRESBYTERIAN  CHURCH  CASE. 

"  The  Moderator  is  to  be  considered  as  possessing  by  delegation  from 
the  whole  body,  all  authority  necessary  for  the  preservation  of  order;  for 
convening  and  adjourning  the  judicatory;  and  directing  its  operations 
according  to  the  rules  of  the  Church.  He  is  to  propose  to  the  judicatory 
every  subject  of  deliberation  that  comes  before  them.  He  ma}''  propose 
what  appears  to  him  the  most  regular  and  speedy  way  of  bringing  any 
business  to  issue.  He  shall  prevent  the  members  from  interrupting  each 
other;  and  require  them  in  speaking,  always  to  address  the  chair.  He 
shall  prevent  a  speaker  from  deviating  from  the  subject,  and  from  using 
personal  reflections.  He  shall  silence  those  who  refuse  to  obey  order. 
He  shall  prevent  members  who  attempt  to  leave  the  judicatory  without 
leave  obtained  from  him.  He  shall  at  a  proper  season,  when  the  de- 
liberations are  ended,  put  the  question  and  call  the  votes.  If  the  judica- 
tory be  equally  divided  he  shall  possess  the  casting  vote.  If  he  be  not 
willing  to  decide  he  shall  put  the  question  a  second  time;  and  if  the  judi- 
catory be  again  equally  divided,  and  he  decline  to  give  his  vote,  the 
question  shall  be  lost.  In  all  questions  he  shall  give  a  concise  and  clear 
statement  of  the  object  of  the  vote;  and  the  vote  being  taken,  he  shall  de- 
clare how  the  question  is  decided.  And  he  shall  likewise  be  empowered 
on  any  extraordinary  emergency,  to  convene  the  judicatory,  by  his  cir- 
cular letter,  before  the  ordinary  time  of  meeting. 

"  The  Moderator  of  the  Presbytery  shall  be  chosen  from  year  to  year, 
or  at  every  meeting  of  the  Presbytery,  as  the  Presbytery  may  think  best. 
The  Moderator  of  the  Synod,  and  of  the  General  Assembly,  shall  be  cho- 
sen at  each  meeting  of  those  judicatories:  and  the  Moderator,  or  in  case 
of  his  absence,  another  member  appointed  for  the  purpose,  shall  open  the 
next  meeting  with  a  sermon,  and  shall  hold  the  chair  till  a  new  Modera- 
tor be  chosen." 

You  perceive  from  this  the  general  nature  of  the  powers  deposited  in 
the  hands  of  the  Moderator.  He  is  to  execute  and  enforce  the  laws  of 
the  Assembly,  and  is  the  only  channel  of  communication  between  indi- 
vidual members  and  the  house.  Ex  officio  he  has  neither  legislative  or 
judicial  powers.  He  is  not  entitled  to  judge  of  the  propriety  of  any 
thing  determined  upon  by  the  Assembly,  nor  of  its  constitutionality;  but 
must  enforce  whatever  the  house  orders:  as  to  him,  any  law  of  the  body, 
of  whatsoever  character  it  may  be,  is  obligatory.  All  executive  officers 
are  of  the  same  nature:  it  is  not  their  business  to  judge  of  the  legality 
of  measures  which  by  a  competent  authority  they  are  called  upon  to  exe- 
cute. Such  an  officer  cannot  say,  "  I  believe  this  law  is  unconstitutional, 
and  therefore  shall  not  carry  it  into  effiact." — Here  the  officers  of  1S37, 
in  proceeding  according  to  the  requisitions  of  their  office,  to  organize  the 
Assembly  of  1S3S,  on  looking  into  the  minutes  of  the  former  year,  find 
there  an  act  of  the  body,  an  act  unrepealed,  commanding  them  to  exclude 
certain  persons  from  the  roll.  It  is  their  business  to  execute  this  law: 
they  must  leave  it  to  others — to  the  legislative  or  judicial  power — to  re- 
peal it,  or  declare  it  void  and  inoperative.  For  an  executive  officer  to 
judge  of  the  constitutionality  of  an  act  is  a  gross  violation  of  power;  it 
is  erecting  an  appellate  tribunal  utterly  unknown  to  the  law.  Admit 
that  the  act  of  1837  was  unjust,  were  the  Moderator  and  clerks  compe- 
tent so  to  pronounce  it?  They  and  it  were  emanations  from  the  same 
source.     Would  they  not  have  transcended  their  powers,  and  acted  dis- 


MR.  PRESTON'S  ARGUMENT.  305 

orderly,  if  they  had  said,  "  We  will  perform  our  duty,  according  to  our 
own  understanding  of  the  law  and  Constitution?"  I  hold  that  they 
would  have  been  bound  to  execute  the  order,  though  persuaded  that  it 
was  unconstitutional-,  and  to  refer  all  complaints  to  the  body  itself,  by 
which  alone  the  order  could  be  repealed.  Did  they  do  so?  They  stated 
explicitly,  that  they  were  bound  by  the  law  so  long  as  it  remained  unre- 
pealed, and,  when  urged  to  insert  the  names  of  the  excluded  commission- 
ers in  the  roll,  answered,  that  the  rights  of  those  commissioners  must  be  ad- 
judged by  the  General  Assembly.  To  require  them  to  do  otherwise  was  to 
xequire  them  to  assume  the  responsibility  of  repealing  a  solemn  act  of  the 
Assembly.  They  referred  the  whole  matter  to  the  decision  of  the  only 
competent  tribunal,  that  which  alone  could,  and  which,  if  the  relators  are 
to  be  believed,  finally  did,  determine  the  question,  knowing  that  the  clerks 
could  not.  They  repealed,  by  a  solemn  and  formal  vote  of  the  body,  the 
very  enactments  which  they  say  were  so  utterly  void,  that  Mr.  Krebs 
should  have  disregarded  them. 

But  these  executive  officers  were  officers  of  the  new  body,  in  virtue  of 
the  powers  of  the  old  Assembly.  Their  duties  in  the  new  house  de- 
pended entirely  upon  what  had  been  done  in  the  old.  The  Assembly 
of  1837  propagated  that  of  1838,  by  providing  the  means  of  its  organi- 
zation. Pledges,  it  is  said,  had  been  exacted  from  the  clerks.  Now,  this 
is  immaterial  whether  true  or  false;  but  it  is,  besides,  not  true.  It  is  not 
so  either  in  fact,  or  by  legal  intendment.  The  difficulty  here  is  in  the 
manner  of  using  the  English  language,  the  words  being  susceptible  of 
two  meanings.  Our  opponent  say,  that  pledges  were  exacted  and  given: 
we,  that  they  were  exacted,  but  refused.  These  officers  replied,  "  We 
will  give  no  such  pledge;  but  we  will  take  occasion  to  say  v/hat  we  con- 
sider to  be  our  duty."  This  was  altogether  a  different  thing  from  that 
charged  by  the  other  side.  Ex  mero  motu  they  declared  what  they  in- 
tended to  do.  The  rejection  therefore  of  the  commissioners  was  the 
result,  not  of  Mr.  Swing's  resolution,  proposing  the  exaction  of  a 
pledge,  but  of  their  own  conclusion  that  it  was  their  duty  to  carry  into 
effect  the  disowning  acts  of  1S37.  They  were  entirely  independent  of 
the  Assembly  of  1837,  excepting  as  it  was  an  authority  on  which  they 
relied. 

Now,  gentlemen,  admitting  the  unconstitutionality  of  the  law,  liow 
clear  is  it,  that  a  mere  executive  officer,  entrusted  with  its  execution,  must 
consider  it  a  solemn  act  of  a  competent  legislative  or  judicial  authority? 
The  clerks  referred  the  question  to  the  house  for  decision,  and  they  were 
right  in  so  referring  it.  According  to  the  rules  whicli  have  been  read, 
the  clerks  first  decide  whether  each  commissioner  is  entitled  to  his  seat, 
and  in  this  case  they  decided  that  certain  commissioners  were  not.  The 
executive  tribunal  adjudges  that  these  cannot  be  admitted  to  the  roll:  who 
then,  can  admit  them  ?  The  house,  and  the  house  only.  At  what  period  ? 
Before  the  organization  is  complete?  The  clerks  having  rejected  them, 
it  became  necessary  that  the  question  should  come  before  the  Assembly, 
and  by  a  standing  rule  of  that  body,  the  matter  must  be  referred  to  a 
Committee  of  Elections,  appointed  by  the  house,  that  is,  by  those  mem- 
bers whose  seats  were  undisputed,  who  had  been  admitted  by  the  clerks. 
The  clerks  having  made  their  report,  the  first  business  in  order,  is  the  ap- 
pointment of  this  co!©mittee,  to  which  are  sent  all  doubtful  and  disputed 

39 


306  PRESBYTERIAN  CHURCH  CASE. 

cases.  The  clerks  had  a  right  to  decide,  when  the  question  was  within 
their  jurisdiction;  they  must  decide  according  to  their  own  judgment,  and 
the  reasons  of  their  decision  are  not  open  to  investigation.  God  forbid, 
that  this  or  any  other  civil  court  should  entertain  an  appeal  from  an  eccle- 
siastical body,  in  regard  to  a  matter  confessedly  within  the  powers  of  the 
latter!  Once  establish  that  the  clerks  had  the  jurisdiction,  and  with  their 
reasons  you  cannot  meddle.  Else  you  make  the  civil  courts  appelate  tri- 
bunals from  the  ecclesiastical — a  most  anomalous  result,  to  which  none  of 
us  is  prepared  to  submit.  Whether  the  clerks  did  right  or  wrong,  is  not 
to  be  decided  here.  Their  judgment  was  absolute,  until  the  matter  had 
been  referred  to  the  Committee  of  Elections,  they  had  reported,  and  on 
such  report  the  question  had  been  proposed  to  the  Assembly.  Then,  and 
not  till  then,  could  the  subject  come  before  that  body.  This  course  was 
open  to  the  gentlemen  on  the  other  side;  they  knew  that  in  this  way  they 
could  bring  the  matter  before  the  house;  and  if,  by  a  solemn  decision,  the 
house  had  decided  to  abide  by  the  acts  of  1S37;  if  the  subject  had  been 
fairly  met,  and  the  commissioners  had  still  been  excluded,  theu  the  very 
question  which  they  now  desire  to  present,  would  have  arisen. 

When  might  this  proceeding  have  taken  place  ?  Not  until  the  roll  had 
been  completed.  If  the  mode  and  manner  which  I  have  explained  be 
conceded  to  us,  then  the  question  of  time  is  immaterial.  Still  I  put  the 
case  upon  that  ground  also.  The  proper  time  for  the  Assembly  to  act 
upon  the  rejected  commissions  was  after  the  report  of  the  Committee  of 
Elections:  before  this  the  organization  was  but  inchoate.  The  Assembly 
sits  during  the  process  of  its  organization  by  the  act,  and  under  the  offi- 
cers of  the  preceding  Assembly.  First,  it  is  constituted  with  prayer,  and 
then  proceeds  to  the  business  of  forming  its  roll.  When  is  it  prepared 
for  all  other  business?  The  constitution  of  the  body  is  a  peculiar  pro- 
cess, and  not  identical  with  its  organization.  The  case  is  this:  the 
Moderator  offers  a  prayer,  and  then  in  the  usual  form  declares  the  As- 
sembly constituted:  afterwards  he  proceeds  to  organize  the  house;  and 
until  this  was  effected  there  was  no  house  by  which  any  name  could  be 
added  to  the  roll.  But  these  gentlemen  did  not  wait  for  the  complete  or- 
ganization of  the  body.  Who  were  the  Assembly  at  the  time  of  their 
application  ?  All  the  men,  women,  and  children,  in  whose  presence  the 
constituting  prayer  had  been  offered?  This  is  absurd.  All  who  pre- 
tended to  be  members  ?  No,  certainly  not.  Those  whom  the  clerks  had 
rejected  in  the  initiatory  proceeding  formed  no  part  of  the  body.  It  was 
composed  of  the  members  whose  rights  were  undisputed,  and  all  such  that 
were  present  must  have  been  admitted  to  their  seats  before  the  organiza- 
tion could  be  complete,  or  the  house  could  perform  any  valid  act.  If  but 
fourteen  commissioners  with  regular  commissions  were  present,  they,  ex 
necessitate  rei,  constituted  the  house,  for  all  the  purposes  of  its  prelimi- 
nary legislative  existence.  They  were  the  only  persons  to  whom  a  ques- 
tion could  be  put.  If  then,  the  application  of  the  rejected  commissioners 
was  made  to  all  those  present  who  claimed  a  right  to  seats,  it  was  made 
to  some  who  were  not  entitled  to  vote  upon  it.  Such  claims  must  be  de- 
termined by  the  undisputed  members.  How  monstrous,  that  on  a  ques- 
tion in  regard  to  the  validity  of  a  commission,  the  commissioner  himself 
who  demands  a  place  should  give  his  vote! 

There  is  another  fact  which  should  here  be  noticed.     The  proceedings 


MR.  PRESTON'S  ARGUMENT.  397 

of  the  Moderator  are  supposed  to  have  vitiated  the  organization  of  183S, 
to  such  an  extent,  that  our  opponents  were  entitled  to  do  what  they  did. 
B^t  the  Moderator  is  not  the  house.  Dr.  Elliott,  indeed,  was  but  the 
Moderator  of  the  Assembly  of  1837,  continued  in  office  by  that  body  to 
preside  in  the  inchoate  organization  of  183S.  The  house  then  were  not 
responsible  for  his  acts,  and  should  not  have  been  punished  for  them,  un- 
less they  sustained  him;  and  that  they  did  has  not  been  proved.  Was 
any  question  put  to  the  house?  An  appeal  was  taken  from  the  decision 
of  the  Moderator,  that  a  motion  was  out  of  order  at  that  time,  and  the  ap- 
peal was  declared  out  of  order.  Now  are  we  to  take  for  granted  that  the 
house  sustained  him  in  his  decision?  The  opposite  party  must  contend 
that  we  did;  or  else  why  did  they  consider  the  organization  of  the  As- 
sembly, so  far  as  it  had  gone,  entirely  void,  and  proceed  themselves  to 
re-organize  it  from  its  original  elements?  But  at  the  same  time  it  is  ne- 
cessar}^  to  another  part  of  their  case,  to  maintain  that  we  did  not  acquiesce 
in  the  Moderator's  judgment.  For  one  set  of  purposes  they  must  establish 
one  ground,  and  for  another  set,  a  ground  entirely  opposite.  Both  pro- 
positions they  must  demonstrate.  In  what  endless  mazes  does  cunning 
usually  involve  itself! 

Let  me  explain  this  matter  more  fully.  They  say  that  the  Moderator 
acted  badly,  and  that  they  turned  him  out  of  office  on  account  of  his  mis- 
conduct. Then  as  they  left  us  behind,  and  disregarded  our  partial  orga- 
nization, they  must  assume  that  we  had  sustained  him  in  wrong  doing. 
We  had  no  opportunity  given  us  of  acting  at  all  in  the  matter.  But,  say 
the  gentlemen  on  the  other  side,  you  acquiesced  in  his  refusal  to  put  the 
appeal.  What  question  is  before  a  house  when  an  appeal  is  taken?  The 
question  whether  the  decision  of  the  presiding  officer  shall  be  sustained. 
Was  this  proposed  to  the  house?  Did  Mr.  Cleaveland  venture  to  say, 
"Gentlemen,  the  Moderator  has  refused  to  do  his  duty;  therefore,  I  put 
it  to  you,  will  you  sustain  him?"  In  this  there  might  have  been  some 
appearance  of  wild  justice.  But  he  did  not  put  any  such  question,  and 
therefore  we  could  not  have  acquiesced  in  the  Moderator's  misconduct. 
He  was,  besides,  not  our  Moderator:  why  should  we  be  responsible  for 
him?  A  dispute  arose  between  him  and  a  member,  and  the  latter  was 
checkmated;  but  how  did  the  house,  or  how  could  it,  interfere?  There 
cannot  be  any  acquiescence  in  this  case  by  legal  intendment.  The  ques- 
tion which  I  have  mentioned  was  the  only  one  that  could  have  been  put, 
even  if,  ex  necessitate  rei,  any  body  else  than  the  presiding  officer  could 
have  put  it.  But  farther,  this  was  not  a  case  in  which  a  person  was  jus- 
tified to  take  the  law  into  his  own  hands;  it  was  not  a  case  unprovided 
for  by  parliamentary  rules.  The  refusal  of  the  speaker  of  a  parliamentary 
body,  to  put  the  question  on  an  appeal,  if  he  is  wrong,  is  a  breach  of  the 
member's  privilege;  and  a  question  of  privilege  immediately  rises  and 
supersedes  every  thing  else.  The  member  may  say,  "I  stand  upon  a 
question  of  privilege;  I  move  that  the  speaker  be  impeached;  that  the 
serjeant-at-arms  take  him  into  custody,  and  we  proceed  to  try  him;  and 
that  the  clerk  be  put  in  his  place."  He  may  be  deposed  first,  and  after- 
wards, if  the  body  is  authorized  to  inflict  such  penalties,  may  be  fined  and 
imprisoned.  But  when  was  it  ever  heard  of,  that  the  refusal  of  an  execu- 
tive officer  to  perform  his  duties,  endowed  the  person  aggrieved  with  ex- 
ecutive powers?     If  a^sheriff  refuse  to  execute  the  process  of  the  court, 


308  PRESBYTERIAN  CHURCH  CASE. 

are  you  therefore  at  liberty  to  execute  it  yourself  ?  If  tlie  President  of 
the  United  States  refuse  to  fulfil  the  requirements  of  his  office,  do  you 
thereby  become  President  of  the  United  States?  Or  because  the  speaker 
of  a  house  is  recreant  to  his  trust,  does  that  endow  you  with  the  qualifica- 
tions of  a  speaker?  He  may  be  prosecuted  and  degraded,  and  then  you 
may  bring  the  question,  which  he  had  refused  to  put,  before  the  house. 
This  was  decided  two  centuries  ago  in  the  British  Parliament.  2  Hat- 
sell.  175,  6.  5  Grey,  133.  Sutherland's  Man.  95.  Thus  the  law 
provides  a  remedy  for  the  misconduct  of  a  presiding  officer,  without  a 
revolution^  without  force  and  violence — ultima  ratio  regum.  All  the 
proceedings  of  the  speaker  are  subject  to  the  supervision  of  the  house, 
but  cannot  be  brought  before  the  body,  until  he  has  first  been  impeached, 

I  now  propose  to  call  your  attention  to  the  circumstances  that  show 
each  part  of  the  proceedings  of  the  New-school  party  to  have  been  out  of 
order,  and  not  capable  of  binding  any  body.  I  appeal  to  the  testimony  of 
their  own  minutes.  First  Dr.  Patton  made  a  motion;  and  you  perceive, 
gentlemen,  that  all  these  things  were  done  upon  advisement.  The  drama 
had  been  written  out,  the  various  characters  cast — each  was  in  his  place, 
and  anxiously  seeking  a  hole  into  which  he  might  thrust  himself.  "  After 
the  benediction,  the  Moderator  of  the  last  Assembly  took  the  chair  and 
opened  the  meeting  with  prayer. 

"  The  Rev.  William  Patton,  D.  D.,  from  the  Third  Presbytery  of  New 
York,  then  rose  and  aslced  leave  to  oifer  the  following  preamble  and  reso- 
lutions." The  benediction  had  scarcely  fallen  from  the  lips  of  the  Mode- 
rator, before  the  farce  commenced,  by  Dr.  Patton's  presenting  his  pream- 
ble and  resolutions.  To  whom,  or  to  what,  did  he  present  them,  and  for 
what  purpose?  Certainly,  at  that  time,  before  the  roll  had  been  reported 
by  the  clerks,  there  was  no  house  in  existence,  unless  it  consisted  of  all 
present — the  men,  women,  and  children  collected  in  the  church.  To 
this  mixed  multitude  then  the  Rev.  William  Patton,  D.  D.  addressed  his 
preamble  and  resolutions.  "  The  Moderator  declared  him  to  be  out  of 
order,  and  refused  to  allow  them  to  be  read."  He  said  that  the  first  bu- 
siness— that  which  superseded  every  thing  else — was  the  report  of  the 
clerks;  that  all  this  rigmarole  of  Dr.  Patton's  was  out  of  order,  was  pre- 
mature, as  there  was  no  house  to  put  any  question  to.  Dr.  Patton  appealed 
from  the  decision.  1  am  inclined  to  think,  that  the  refusal  of  the  Mode- 
rator was  unexpected,  and  disarranged  their  plan  of  operation.  Dr.  Patton 
and  his  friends  knew  full  well  that  if  the  resolutions  offered  had  been  put, 
the  decision  would  have  been  against  them,  and  to  meet  that  state  of 
things,  they  had  shaped  their  course.  The  Moderator  declared  the  appeal 
also  out  of  order,  "  and  refused  to  put  it,  and  directed  the  clerk  to  make 
his  report  upon  the  roll.  Dr.  Patton  then  declared  to  the  Moderator, 
that  the  paper  he  wished  read  had  relation  to  forming  the  roll.  The 
Moderator  then  stated  that  he  was  out  of  order  as  the  clerk  was  on  the 
floor;  whereupon  the  Moderator  was  reminded  by  Dr.  Patton  that  he  had 
the  floor  before  the  clerk.  Yet  by  law  the  clerk  was  the  person  first 
entitled  to  the  floor,  and  the  next  business  after  his  report,  was  the  ap- 
pointment of  a  Committee  of  Elections.  Dr.  Patton  was  endeavouring 
to  trample  upon  all  law  and  order;  to  embarrass  the  process  of  organiza- 
tion; to  force  the  Assembly  to  vote  upon  a  disorderly  resolution.  He 
was  in  direct  opposition  to  the  rules,  and  being  reminded  of  this,  was 


MR.  PRESTON'S  ARGUMENT.  3Q9 

instantly  struck  dumb,  and  took  his  seat;  so  obvious  was  it  that  the  clerk's 
report  upon  the  roll  was  absolutely  necessary  to  the  very  existence  of  an 
Assembly.     There  was  an  end  of  Dr.  Patton. 

Dr.  Mason's  part  came  next.  "  Thereupon  the  Rev.  Erksine  Mason, 
D.  D.  from  the  Third  Presbytery  of  New  York,  rose  and  offered  the  fol- 
lowing; resolution: 

•'  Resolved,  That  the  roll  be  now  completed  by  adding  the  names  of 
all  commissioners  now  present  from  the  several  Presbyteries  within  the 
bounds  of  the  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Re- 
serve." 

Was  this  a  response  to  the  previous  call  of  the  Moderator,  in  whatever 
sense  you  may  understand  that  call  ?  If  it  was  a  call  for  commissions  not 
presented,  then  it  is  clear  that  Dr.  Mason's  motion  was  not  a  response. 
If  for  commissions  that  had  not  been  enrolled,  still  it  was  evident  that  it 
conteinplated  cases  of  an  entirely  different  kind  from  those  embraced  in 
that  motion.  The  call,  no  matter  in  what  words  made,  was  clearly  for 
commissions  to  be  presented  to  the  clerks,  and  by  them,  if  regular,  en- 
rolled; while  Dr.  Patton  offered  a  formal  resolution,  that  certain  commis- 
sioners who  had  already  been  rejected  by  the  clerks,  should  be  added  to 
the  roll — a  resolution  entirely  unprecedented  and  disorderly.  The  Mo- 
derator called  for  business  which  the  executive  officers  were  to  transact: 
Dr.  Mason's  application  was  to  the  legislative  power — it  was  no  response 
to  the  call.  These  executive  officers — the  clerks — were  to  receive  all 
commissions  presented  in  obedience  to  it,  and  on  presentation  they  were 
to  be  enrolled  or  rejected  by  them.  If  rejected,  they  were  to  go  to  the 
Committee  of  Elections.  Knowing  all  this,  Dr.  Mason,  nevertheless,  ap- 
pealed directly  to  the  house;  not  to  that  committee — not  to  the  tribunal 
established  by  the  Assembly.  Superseding  the  Committee  of  Elections, 
he  applied  primarily  to  the  house  itself.     He  was  clearly  out  of  order. 

The  object  of  the  Moderator  was  to  form  the  roll,  in  order  to  ascertain 
who  were  entitled  to  vote:  the  object  of  this  proceeding  to  supersede  the 
decision  already  given,  and  bestow  a  vote  upon  all  who  chose  to  claim  the 
right  of  membership.  It  was  an  appeal  by  the  rejected  commissioners  to 
themselves.  Dr.  Mason  proposed  that  the  gentlemen  of  the  four  Synods, 
should  sit  in  judgment  on  their  own  case — should  vote  upon  the  question 
whether  they  had  a  right  to  vote. 

He  did  not  move  for  the  repeal  of  the  standing  regulation  of  the  house, 
in  regard  to  the  Committee  of  Elections.  It  may  be  that  two-thirds  were 
necessary  to  carry  a  motion  for  the  repeal  of  that  regulation,  while  he  de- 
sired to  take  away  the  decision  on  the  disputed  seats  from  the  committee, 
by  a  naked  vote  of  the  Assembly. 

I  now  direct  your  attention  to  Mr.  Squier,  who  also  played  a  conspi- 
cuous part  in  the  drama.  "  The  Rev.  Miles  P.  Squier,  from  the  Presby- 
tery of  Geneva,  then  rose,  and  addressed  the  chair,  stating  that  he  had  a 
commission  from  the  Presbytery  of  Geneva,  &c."  We  can  despatch  him 
in  very  short  order.  Mr.  Squier  was  one  of  the  rejected  commissioners, 
and  without  any  pretext  of  membership  whatever,  or  any  prima  facie 
claim  to  a  seat,  presumed  to  submit  a  motion  to  the  Assembly.  I  might, 
with  as  much  propriety,  do  the  same  in  any  body  under  heaven.  The 
only  tribunal  before  which  his  case  had  come,  had  decided  that  he  was 
not  entitled  to  a  seat.  »Yet  he  undertook  to  make  a  speech  and  a  motion — 


310  PRESBYTERIAN  CHURCH  CASE. 

a  most  unprecedented  undertaking,  for  one,  who,  so  far  from  being  known 
as  a  member,  was  most  notoriously  not  so!  It  bespeaks  the  disorderly 
nature  of  the  whole  proceeding.  The  thing  was  absolutely  ludicrous  and 
absurd.  There  was  not  a  woman  or  child  in  the  whole  assemblage,  that 
had  not  just  as  good  a  right  to  deliver  a  speech  as  had  Mr.  Squier.  He 
was  disposed  to  make  a  very  early  display  of  his  abilities  as  a  speaker. 
He  was  out  of  order  by  his  own  showing.  He  knew,  not  only  that  he 
was  not  a  member,  but  that  until  the  Committee  of  Elections  had  decided 
him  to  be  such,  he  had  no  right  to  open  his  mouth.  Besides,  there  was 
as  yet  no  Assembly  to  whom  he  could  put  a"  motion.  To  whom  did  he 
offer  his  resolution  ?  The  roll  was  not  yet  complete.  He  offered  it,  then, 
to  all  present,  himself  among  the  rest.  It  was  a  solecism  in  terms,  and 
a  confusion  of  ideas,  for  him  to  make  such  a  motion,  not  being  a  recog- 
nised member. 

Another  matter  occurs  to  me,  in  connexion  with  this  proceeding  of 
Mr,  Squier's.  He  declared  that  his  commission  had  been  presented  to 
the  clerks,  and  rejected;  and  in  the  same  breath  showed,  that  a  General 
Assembly  had  decided  that  he  was  not  a  member.  In  the  face  then  of 
both  executive  and  legislative  decisions,  he  claimed  to  be  a  member,  en- 
titled to  make  a  motion.  The  Moderator  said  to  him,"  We  do  not  know 
you,  sir."  Could  any  reply  have  been  more  simple  and  appropriate? 
"  The  Assembly  does  not  know  or  recognise  you:  you  are  not  a  member, 
by  your  own  showing."  No  answer  could  have  been  more  correct. 
"We  do  not  know  you,"  included  every  thing  that  suited  the  case.  Yet 
the  learned  counsel  has  thought  it  his  duty,  on  account  of  this  simple 
declaration,  to  cast  an  imputation  upon  Dr.  Elliott,  which  you  must  think 
strange — which  you  cannot  but  know  to  be  inappropriate  and  gratuitous. 
He  has  allowed  himself  to  accuse  that  reverend  gentleman  of  pretending 
to  hurl  terrible  anathemas  at  the  head  of  Mr.  Squier,  and  decide  upon  his 
eternal  destiny.  To  assert,  that  his  heart  boiled  over  with  malevolent 
passions;  that  he  presumed  to  usurp  the  province  of  our  last  Great  Judge, 
and  in  the  bitter  malignancy  of  his  spirit,  to  send  a  fellow  creature  to 
eternal  damnaiion.  Is  it  not  pushing  the  thing  a  little  too  far,  to  impute 
to  him  a  denunciation  of  so  awful  a  character?  He  had  no  such  inten- 
tion: the  imputation  is  groundless.  He  did  not  allude  to  the  anathema 
of  that  awful  text.  The  supposition  that  in  the  excitement  of  feeling — 
the  boiling  tempest  of  passion,  he  uttered  words,  intended  to  bear  so 
dreadful  an  import,  betrays  the  morbid  imagination  of  our  opponents. 
They  are  ready  to  suppose  every  thing  diabolical  in  our  conduct — I  will 
not  say  by  reflection  from  their  own  bosoms,  but  from  the  excited  condi- 
tion of  their  fancies.  Is  it  not  a  high  proof  of  an  excited  and  morbid 
imagination,  that  they  can  ascribe  to  Dr.  Elliott  this  damnatory  denunci- 
ation ?  He  repels  the  imputation  with  pious  scorn  and  horror!  But  it 
is  of  a  piece  with  other  things;  with  the  picture  which  they  have  drawn 
of  the  Old-school  party,  sitting  in  solemn  conclave,  tremulously  expecting 
the  approach  of  an  adversary;  with  their  taking  advice  of  lawyers,  and 
under  legal  direction  concocting  their  minutes,  as  if  fearing  all  sorts  of 
strange  occurrences.  In  the  heat  of  their  distempered  minds,  they  see  in 
every  man  a  lawyer,  and  in  every  word  a  quirk  or  quibble.  Intending 
to  spread  a  snare  themselves,  they  walk  very  cautiously,  lest  they  should 
be  first  entrapped.     Well,  this  feeling  they  have  imparted  to  the  learned 


MR.  PRESTON'S  ARGUMENT.  311 

counsel,  in  giving  him  instructions:  that  it  originated  in  his  own  mind,  is 
not  to  be  conceived. 

Dr.  Mason  has  manifested  the  same  wild  and  creative  imagination.  He 
tells  us  that  he  copied' his  roll  from  that  read  by  Mr.  Krebs,  and  from  the 
newspapers.  "How  did  you  do  this?  "Wh}^,  Idid  it."  "Did  you 
see  Mr.  Krebs'  list?"  "No."  "Did  you  see  the  commissions?" 
"  No — I  will  tell  you  how  I  did  it.  I  heard  Mr.  Krebs  read  over  the 
roll,  and  I  wrote  down  some  of  the  names."  "  Well,  did  you  make  out 
the  whole  of  your  roll  from  his  reading?"  "I  only  corrected  it." 
"-Where  did  you  get  your  original  list?"  "I  got  that  from  the  news- 
papers, and  as  Mr.  Krebs  read,  I  corrected  it,  putting  in  or  striking  out 
names  as  was  necessary."  Here  was  a  most  violent  effort  of  the  imagi- 
nation. '  He  had  also  a  roll  which  Mr.  Krebs  had  not:  and  this  was  on  a 
separate  paper.  That  he  got  from  some  other  source;  and  these  were  the 
rolls  which  he  held  in  his  hand,  when  he  acted  as  clerk,  standing  in  the 
aisle,  like  Dr.  Beman,  the  chairman,  who  stood  up  in  his  imaginary  chair. 
"Had  you  any  paper,  pens,  or  ink?"  "No,  but  for  all  that  I  was  a 
clerk."  "  Well,  how  did  you  make  up  your  roll  out  of  the  two  lists  ?" 
"Why  I  considered  the  two  as  one,  and  so  considered  the  roll  formed." 
The  New-school  roll  then  was  formed  by  an  act  of  consideration,  an  effort 
of  the  imagination;  may  it  please  your  Honour,  by  an  intendment  of 
law.  I  don't  object,  however,  to  the  gentleman's  having  any  thing,  or  all 
things  in  his  imagination,  even  as  he  had  the  pen,  ink,  and  paper. 

Mr.  Gilbert,  too,  discovers  a  most  potent  fancy.  He  is  an  ardent  party 
man,  and  extremely  zealous  in  this  controversy.  Well,  he  comes  to  the 
church  in  Ranstead  Court,  and  essays  to  pass  through  the  session-room. 
As,  labouring  under  terrible  excitement,  he  passes  by  the  place  where 
the  clerks  are  sitting,  instantly  he  begins  to  amagine  that  they  have  some 
mysterious  purpose,  are  engaged  in  some  diabolical  machinations.  They 
have  pens,  ink,  and  paper,  and  hold  frequent  consultations.  "  What  a 
horrible  conspiracy  is  here!  Let  me  only  catch  a  word,  and  I'll  blow 
them  all  up."  Hear  the  awful  sounds!  Dr.  McDowell  says  to  Mr.  Krebs, 
"Lock  that  door!"  What  an  awful  conspiracy!  Bars,  and  bolts,  and 
dungeons,  crowd  upon  his  imagination.  "  Lock  that  door!"  The  w^ords 
have  left  an  indelible  impression  upon  his  mind:  they  are  always  present 
to  him  waking  and  sleeping.  He  is  called  into  this  court,  and  they  burst 
from  his  quivering  lips — "  I  heard  him  say,  '  Lock  that  door!'  "  What 
infernal  images  must  be  ever  running  riot  through  his  brain — what 

Hydras,  and  Gorgons,  and  chimeras  dire! 

when  to  such  an  act  as  the  locking  of  that  door,  he  could  attribute 
enough  importance  to  have  conned  over  the  words — learned  them  by  rote, 
in  order  to  cast  them  into  our  teeth.  What  frightful  fancies  would  have 
possessed  his  mind,  if  Dr.  McDowell  had  leaned  over  the  table,  a:-:d  whis- 
pered, "Brother  Krebs,  will  you  lend  me  your  knife?"  In  horror  he  had 
fled  from  the  house.  He  would  not  have  been  seen  again  in  that  Assem- 
bly. I  doubt  not  that  by  this  time  his  amagi nation  would  have  been  so 
fearfully  excited,  that  he  would  have  expected  to  see  a  bowie  knife,  at 
least  nineteen  inches  long! 

Gentlemen,  there  are  other  points  on  which  I  deem  it  necessary  to  say 
a  few  words.     I  woukl^leave  them  to  the  learned  counsel  who  is  to  fol- 


312  PRESBYTERIAN  CHURCH  CASE. 

low,  if  I  did  not  feel  that  the  duty  I  have  assumed  requires  something 
more  at  my  hands.     If  you  will  grant  me  farther  indulgence,  I  will  touch 
upon  the  remaining  points  to-morrow  morning. 
Court  adjourned. 


WEDNESDAY  MORNING,  March  20th— 10  o'clock. 

May  itvlease  your  Honour — Gentlemen  of  the  Jury — I  take  it  that, 
in  every  organized  assembly,  however  constituted,  independently  of  its 
own  special  rules,  and  of  general  parliamentary  law,  there  are  always 
certain  causes  existing  externally,  which  from  the  general  nature  of  things, 
must  operate  as  strongly  as  any  actual  regulations.  In  other  words,  there 
are  circumstances,  which,  independently  of  all  rules,  from  their  own  na- 
ture, control  a  body,  though  no  reference  may  be  had  to  their  existence. 
In  examining,  then,  into  the  acts  of  any  organized  .body,  with  a  view  to 
determine  whether  they  have  been  according  to  law,  it  is  essential  to 
inquire,  whether,  at  the  crisis  contemplated,  there  did  not  exist  circum- 
stances rendering  it  impossible  to  establish  any  plan  of  action.  Where 
there  is  a  moral  or  physical  disability,  this  fact  alone  is  sufficient  to  reduce 
the  body  to  a  state  of  dissolution,  and  of  incapacity  to  arrive  at  any  valid 
result.  To  illustrate  this  position:  a  man  may  by  the  laws  of  God  and 
of  his  country  do  thus  and  thus,  supposing  his  organization,  physical, 
moral,  and  intellectual,  complete.  But  if  circumstances  exist,  without,  to 
prevent  the  exercise  of  his  accustomed  powers,  the  same  thing  cannot  be 
predicated  of  him.  If  he  receive  a  blow  upon  the  head,  which  renders 
him  senseless,  it  is  obvious  that  nothing  can  be  predicated  of  him  as  an 
organized  being.  So  there  may  be  circumstances  atfecting  an  assembl}'" 
of  men,  which  prevent  all  regular  organic  action,  and  produce  either 
temporary  incapacity  or  dissolution.  Well,  in  this  case,  what  aspect  did 
the  Assembly  of  1S3S  present,  considered  as  an  organized  iiouse — a  cor- 
porate body,  if  you  will  permit  the  expression:  what  was  its  condition? 
Under  the  direction  of  the  testimony,  I  tell  you,  gentlemen,  that  at  the 
time  of  these  proceedings,  it  was  rendered  physically  incapable  of  corpo- 
rate action;  that  it  had  received  a  blow  upon  its  sensorium,  which  had 
deprived  it  of  its  senses.  Once  admit  that  the  members  of  the  Assembly 
were  physically  incapacitated  for  regular  action,  and  you  divest  them  of 
all  accountability  to  law;  they  cannot  be  held  bound  by  any  legal  intend- 
ment. Unquestionably  the  body  would  have  been  dissolved  by  the  irrup- 
tion of  a  foreign  body,  violently  separating  its  members,  and  by  force 
taking  possession  of  the  place  of  meeting.  Unquestionably,  on  the  18th 
Brumaire,  when  the  troops  of  Napoleon  entered  the  hall  of  the  Legisla- 
tive Council,  silenced  the  members,  and  at  the  point  of  the  bayonet  drove 
them  from  the  house,  the  Assembly  was  dissolved.  The  members  were 
overawed,  subjected  to  duress;  it  was  impossible  to  speak,  and  speaking 
was  necessary  to  legislative  action;  impossible  to  hear,  which  was  abso- 
lutely necessary.  A  deliberative  body  could  not  perform  its  functions 
in  the  midst  of  a  cannonade,  or  while  a  drum  was  beating  in  their  hall. 
By  the  existence  of  any  portion  of  these  circumstances,  all  attempts  to 
proceed  with  business  would  be  fruitless,  and  any  thing  done  invalid. 
The  body  would  be  dissolved,  or  at  least  stunned  and  lifeless. 


MR.  PRESTON'S  ARGUMENT.  3^3 

Now,  it  is  proved,  that  in  the  present  case,  the  Assembly  was  physi- 
cally incapable  of  judging  of  any  matter  brought  before  it;  and,  there- 
fore, I  say  it  was  released  from  all  obligation,  and  cannot  be  bound  by 
any  intendment  of  law.  Am  I  asked,  where  is  the  proof  of  this?  With 
assiduity  we  have  collected  a  large  number  of  those  who  were  present  in 
the  Assembly,  as  members  of  that  body,  and  all  these  gentlemen  have 
told  you  that  they  did  not  hear  the  question  on  which  the  whole  case 
turns;  that  it  was  impossible  to  hear  it,  by  reason  of  the  noise  made  by 
the  New-school,  aggravated,  if  you  please,  by  the  noise  of  the  Old-school. 
Take  it  for  granted  that  both  parties  were  guilty  of  indecent  violence; 
and  that  the  disturbance  created  by  the  two  combined  prevented  the 
question  from  being  heard.  It  makes  no  difference  whether  one  or  all,  a 
portion,  or  the  whole  body  make  the  noise.  If  the  whole  Assembly  par- 
ticipated, if  the  whole  was  in  such  disorder,  that  it  was  impossible  to  act, 
for  the  moment  it  was  dissolved;  and  ipso  facto,  every  thing  done  was 
void.  Daring  this  time  of  outrage  and  disorder,  the  body  was  in  such  a 
state  that  it  was  impossible  for  business  to  be  properly  perfected.  If  the 
whole  body  or  a  large  portion  of  it,  did  not  hear  what  was  proposed,  this 
released  them  from  all  liability  on  account  of  it.  If  in  consequence  of 
uproar  and  riot  it  was  impossible  for  all  to  hear,  the  proceedings  were  as 
void,  as  if  conducted  in  the  remotest  part  of  the  gallery,  or  by  persons 
speaking  below  their  breath.  The  fact  that  we  heard  must  first  be 
proved,  before  we  can  be  bound.  We  have  anxiously  and  industriously 
collected  witnesses,  and  asked  them  all  distinctly,  "Did  you  hear  these 
questions  put?"  "No."  "Did  you  hear  them  reversed?"  "No." 
"  Did  you  know  what  was  done?"  "No,  I  did  not  until  the  next  morn- 
ing." Not  a  single  one  of  them  has  sworn  that  he  heard  these  questions. 
Now,  we  have  examined  from  twenty  to  thirty  who  were  members  of 
the  Assembly — as  many  of  the  Old-school  party  as  we  could  get,  and  we 
made  proclamation  for  more  of  them.  Are  we  asked  to  call  up  persons 
of  the  other  party  and  examine  them?  We  are  not  bound  to  do  so. 
The  question  is  whether  lue  heard.  We  are  the  persons  to  be  made  lia- 
ble; and  when  all  of  us  have  been  called  upon,  and  have  sworn,  that 
there  was  such  an  uproar  it  was  impossible  for  the  Assembly  to  act;  that 
we  did  not  know  what  was  done  until  the  next  day,  excepting  that  the 
other  party  had  adjourned,  and  even  this,  not  until  it  was  proclaimed  by 
a  public  crier,  the  question  is  conclusively  settled.  Here  was  the  inter- 
position of  a  physical  fact  which  made  it  impossible  for  us  to  participate 
in  any  proceeding.  Will  your  Honour  say,  that  notwithstanding  this, 
the  question  being  put,  we  were  bound  to  hear,  although  it  was  by  their 
own  act  that  we  were  prevented  from  hearing? 

It  is  contended  on  the  other  side  that  there  is  an  extraordinary  dis- 
crepancy in  this  part  of  the  evidence,  between  our  witnesses  and  theirs. 
All  ours  swear  that  they  could  not  hear,  and  all  theirs,  excepting  one  or 
two,  that  they  could,  and  even  could  hear  distinctly.  Now  one  positive 
witness,  is  worth  a  thousand  negative,  says  the  learned  counsel.  This 
principle  is  correct,  but  here  is  misapplied.  Either  that  we  did,  or  did 
not  hear,  is  a  positive  fact.  Can  any  body  but  myself  answer,  whether  I 
did  or  did  not?  All  the  persons  examined  have  been  competent  wit- 
nesses, and  there  are,  I  think,  about  thirty  of  ours  against  twenty  of 
theirs.     There  is  an  apparent,  I  will  not  deny  ihat  there  is  a  real  contra- 

40 


314  PRESBYTERIAN  CHURCH  CASE. 

diction;  for  one  party  swears  that  all  the  motions  were  made,  and  the 
questions  put  and  reversed,  audibly,  and  distinctly;  the  other  that  they 
did  not  hear  them.  Now,  perhaps  the  former  mean,  that  they  were  made 
and  put  audibly,  to  a  person  whose  ear  was  in  close  contact  with  the 
speakers,  not  audibly  to  all  who  were  in  the  house.  But,  however  that 
may  be,  the  exigency  was  that  they  should  be  audible  to  us;  we  swear 
that  they  were  not,  and  no  one  can  swear  to  the  contrary.  We  prove 
this  by  positive  witnesses,  and  by  witnesses  who  have  not  been,  and  can- 
not be  contradicted.  The  other  side  may  swear  until  doomsday,  and 
they  cannot  disprove  such  testimony. 

The  learned  counsel  has  referred  you  to  metaphysical  principles,  to 
strengthen  his  argument  on  this  head.  He  has  told  us  that  the  ear  does 
not  mark  sounds,  to  which  it  is  accustomed;  that  these  were  too  familiar 
to  strike  forcibly  at  the  moment.  The  sounds  which  echoed  through 
that  church  were  wonted  and  familiar!  This  scene  so  orderly,  these 
transactions  so  exactly  in  the  common  routine  of  business,  as  not  to 
arouse  the  attention!  My  learned  friend  would  have  you  believe  that  it 
was  all  some  twice-told  tale.  Why,  it  was  the  most  extraordinary  scene 
that  perhaps  those  walls  had  ever  witnessed.  Every  person  in  the  house 
was  aroused,  and  in  an  extraordinary  state  of  excitement.  It  was  impos- 
sible that  any  one  should  not  listen  with  anxiety  to  each  sound  that  is- 
sued from  that  tumultuous  body.  My  friend  told  you,  that  during  his 
speech,  you  had  not  perhaps  once  marked  the  striking  of  the  clock  above 
us.  There  was  a  much  better  reason  for  that,  than  that  the  sound  had 
grown  familiar.  Even  a  stranger  would  scarce  have  taken  any  note  of 
time,  though  speaking  with  an  tongue  of  iron.  Mr.  Meredith  prevented 
us  from  hearing  just  as  his  clients  had  done  before;  else  we  should  have 
heard. 

But  there  is  a  way  In  which  perhaps  the  apparent  discrepancy  may  be 
reconciled,  consistently  with  the  utmost  respect  for  the  integrity  of  the 
witnesses  on  both  sides;  and  I  am  anxious  to  avail  myself  of  every  pos- 
sible means  of  doing  this.  It  may  be  that  the  gentlemen  of  the  New- 
school  had  heard  what  was  intended,  and  were  all  on  the  alert.  The 
plan  of  proceeding  had  been  arranged  beforehand,  and  knowing  just  what 
was  to  happen,  they  caught  the  shghtest  intonations  of  voice.  Or,  per- 
sons possessed  of  imaginations  much  less  active  than  some  of  those  gen- 
tlemen have  manifested,  from  expecting  that  certain  things  would  take 
place,  may  have  taken  for  granted  that  they  did  take  place,  and  now  fan- 
cy that  they  heard  them.  The  wish,  too,  is  father  to  the  belief,  while 
the  imagination  cheats  the  memory.  Another  mode  of  reconcilement 
suggests  itself,  and  perhaps  this  goes  to  the  root  of  the  difficulty.  Here 
were  two  separate  bodies,  or  separate  portions  of  the  Assembly.  The 
New-school  party  were  entirely  in  our  rear,  and  those  by  whom  the  dif- 
ferent questions  were  put  stood  in  the  midst  of  that  party,  and  addressed 
themselves  to  them.  But  nothing  is  more  natural  than  that  the  tone  of 
voice  should  be  accommodated  to  the  distance  of  those  whom  we  ad- 
dress— that  it  should  be  pitched  to  meet  their  ears.  When  I  turn  from 
you,  gentlemen,  to  address  the  judge,  my  voice  instantly  falls;  instinc- 
tively it  obeys  the  dictate  of  the  eye;  and  again  it  rises  when  I  say, 
«  Gentlemen  of  the  jury."  Nature,  and  not  design,  thus  pitches  my 
tone,  so  that  it  may  be  heard  by  those  to  whom  I  speak.     By  reference 


MR.  PRESTON'S  ARGUMENT. 


315 


to  this  principle  alone  we  may  reconcile  the  discrepancy,  supposing  that 
the  New-school  heard  because  they  were  near;  and  that  the  Old-school, 
being  more  remote,  heard  nothing.  Who  then  was  in  fault?  If  vve  par- 
ticipated in  the  noise  and  riot,  so  far  we  were  guilly;  but  never  before 
have  calls  to  order  been  considered  riotous;  and  where  a  party  who  is 
called  to  order  persists,  notwithstanding  the  call,  if  there  were  a  univer- 
sal and  overwhelming  cry  of  "Order!"  all  woukl  be  in  order  but  the  one 
who  disobeyed  the  cry.  The  mere  raising  of  the  point  of  order  would 
make  him  disorderly. 

It  is  thus,  alone,  that  I  can  reconcile  the  testimony  of  the  witnesses. 
Charity  forbids  us,  if  we  can  in  any  way  get  clear  of  the  difficulty,  to 
impute  a  want  of  candour  or  of  truth,  or  even  to  acknowledge  a  belief  of 
its  existence  to  our  own  minds.  I  say  then,  that  we  were  physically  in- 
capable of  organic  action,  and  therefore  cannot  be  bound  by  intendment 
of  law.  We  are.no  more  bound  than  if  each  of  us  had  been  stunned,  had 
been  struck  with  sudden  deafness.  No  man  totally  incapacitated  for  any 
sort  of  action,  by  the  privation  of  all  his  senses  and  powers,  can  be  con- 
strued to  have  assented  to  what  he  could  not  oppose. 

To  what  was  said  in  regard  to  the  examination  of  Dr.  McDowell,  I 
may  be  permitted  to  reply  in  a  few  vvotds.  We  have  been  taunted  be- 
cause we  did  not  put  the  question,  whether  he  heard  the  different  mo- 
tions that  are  said  to  have  been  made.  We  did  put  the  question  to  Dr. 
Elliott,  and  he,  from  his  situation,  was  certainly  of  all  the  most  likely  to 
have  heard.  But  my  learned  friend  taunts  us,  emphatically,  with  shrink- 
ing from  the  examination  of  Dr.  McDowell  on  this  point.  Why  did  we 
not  ask  him?  You  would  infer  from  the  manner  of  this  taunt,  that  it 
was  pregnant  with  meaning;  that  we  knew  that,  had  we  asked,  the  an- 
swer would  not  have  been  satisfactory  to  us.  Well,  we  present  Dr. 
McDowell  here,  make  him  our  witness,  i)lace  him  on  the  stand.  Here 
he  is:  as  to  credibility  and  competency  the  other  side  are  not  responsible 
for  him;  and  if  his  evidence  is  against  them,  they  may  deny  and  dis- 
prove what  he  says.  We  return  the  question:  why  did  not  they  examine 
him?  We  were  not  bound  to  bring  out  their  case:  we  are  here  to  de- 
velope  our  own.  Thus  we  may  retort  upon  our  opponents;  but,  gentle- 
men, I  will  tell  you  the  reason,  and  the  only  reason,  why  we  did  not  ex- 
amine Dr.  McDowell  and  all  the  rest,  in  regard  to  every  point  in  the 
case.  We  saw  that  his  Honour  the  judge  was  weary,  that  you  all  were 
exhausted  by  listening  to  such  a  mass  of  testimony,  and  we  refrained  for 
fear  of  overlaying  the  case.  We  felt  that  the  only  fact  important  to  this 
part  of  the  cause  was,  whether  those  who  were  members  of  the  Assem- 
bly, those  whose  silence  is  to  be  construed  an  acquiescence,  heard  the 
questions  put.  But  tlie  witness  was  presented  to  our  friends  for  cross- 
examination,  and  depend  upon  it,  if  they  had  thought  to  get  any  thing 
from  him  favourable  to  their  cause,  they  would  have  promptly  asked  the 
question. 

Is  the  case  of  Dr.  McDowell  the  only  one  of  the  kind,  which  my 
learned  friend  has  been  able  to  discover?  We  called  all  the  witnesses 
present — every  one  that  we  could  lay  our  hands  upon.  We  made  procla- 
mation for  others  to  come  forward;  and  unquestionably,  all  the  main  ac- 
tors in  the  scene,  of  our  party,  have  been  examined:  we  should  have 
considered  it  unfair  if  they  had  not.  But  who  have  been  produced  on  the 


315  '  PRESBYTERIAN  CHURCH  CASE. 

other  side?  Where  is  the  arch-anarch;  where  the  leaders,  the  generals 
of  their  forces;  where  the  standard  bearers  and  trumpeters?  Europe  has 
one;  Ohio  another:  these  were  the  generals,  and  the  only  ones  who  are 
competent  to  explain  fully  the  occurrences  of  that  day.  We  have  brought 
forward  all — rank  and  file;  even  the  surgeon-general  has  not  been  omit- 
ted: where  are  their  superior  officers?  They  have  sedulously  adduced 
proof  to  show,  that  these  men  are  at  a  distance.  Why  are  they  not  here, 
when  the  welfare  of  the  Church  requires  their  presence?  Why  are  not 
Dr.  Beman  and  Mr.  Cleaveland  here  to  answer  for  themselves?  It  is 
their  own  conduct  that  is  passing  in  review.-  Why  was  not  the  paper 
read  by  Mr.  Cleaveland,  the  chief  subject  of  animadversion,  produced? 
Or  if  these  men  are  unavoidably  absent,  why  are  not  their  depositions  in 
court?  You  will  be  surprised,  gentlemen,  to  hear  that  they  are;  that 
they  have  been  all  along  in  the  hands  of  the  counsel.  Why  have  they 
not  been  read?  Perhaps,  we  might  not  have  adverted  to  these  most  ex- 
traordinary, and  significant  circumstances,  but  for  the  taunt  of  my  learned 
friend.  But  we  ask  emphatically  and  triumphantly,  why  were  not  the 
depositions  of  the  main  actors  in  all  their  proceedings  read,  when  they 
had  been  taken,  and  were  here  in  court,  in  the  hands  of  the  counsel? 
Dr.  Beman  was  the  very  Coryphaeus  of  the  choir,  and  Mr.  Cleaveland 
held  the  next  most  elevated  position.  Their  depositions  were  taken,  in 
nicely  phrased  documents,  and  the  opposite  counsel  have  them  here  in 
their  pockets.  They  were  the  leaders  of  the  forces.  At  the  sound  of 
their  voices  calling  to  the  contest,  the  host  rallied.  Every  thing  that 
they  proposed  was  answered  by  a  shout  from  their  zealous  followers. 
Their  testimony  would  be  a  panorama  of  the  transaction.  Still  they  are 
absent;  and  the  very  paper  on  the  construction  of  which  the  whole  case 
may  turn,  is  not  produced. 

The  contradictions  in  the  testimony  may,  of  themselves,  furnish  reasons 
for  a  very  important  conclusion.  They  show  that  during  the  scenes 
which  the  witnesses  describe,  there  must  unquestionably  have  been  great 
confusion,  since  such  intelligent,  honest,  Christian  gentlemen  did  not  all 
see  things  in  the  same  way.  Both  parties,  too,  have  sworn  that  there  was 
great  noise  and  disturbance,  although  difiering  as  to  the  source  whence 
they  proceeded.  The  testimony  of  both,  however,  goes  to  establish  the 
fact  that  there  was  so  mucli  tumult  and  confusion,  that  no  regular  and  or- 
derly business  could  be  effected. 

There  is  not  only  a  great  discrepancy  between  the  opposing  witnesses, 
but,  what  is  still  more  remarkable,  all  the  New-school  witnesses  contra- 
dict the  deliberate  and  solemn  declaration  of  the  whole  Assembly  that 
met  in  the  First  Presbyterian  Church.  That  body  has  made  a  statement 
of  the  facts  connected  with  the  organization,  in  their  minutes.  Now, 
many  of  the  witnesses  who  have  sworn  to  the  fact  of  the  different  ques- 
tions being  reversed,  say  that  they  heard  negative  as  well  as  affirmative 
votes — many  are  confident  that  they  heard  both.  Several  of  them  knew 
that  the  question  was  reversed,  only  from  the  fact  of  having  distinguished 
these  negatives.  And,  indeed,  one  of  the  New-school  men,  Mr.  Lathrop, 
swears  that  he  himself  voted  in  the  negative.  Such  are  the  statements  of 
those  who  are  brought  forward  to  prove  that  the  reverse  was  put.  But 
these  same  gentlemen,  or  many  of  them,  being  members  of  the  body  in 
the  First  Church,  have  given  us  as  their  original  understanding  of  the 


MR.  PRESTON'S  ARGUMENT.  ^{7 

matter,  each  by  his  vote  upon  the  solemn  record,  a  very  different  account. 
This  record  declares  that  two  of  the  motions  were  carried  unanimously. 
Within  a  few  iiours  after  the  occurrences  of  the  organization,  these  gen- 
tlemen sat  down,  coolly  and  deliberately,  being  now  relieved  from  the 
excitement  and  anxiety  of  revolution,  and  declared  that  each  question 
previous  to  that  on  the  nomination  of  Dr.  Fisher  had  been  carried  without 
a  dissenting  voice.  Now,  is  it  not  a  most  extraordinary  spectacle,  to  see 
near  twenty  of  the  very  same  gentlemen  come  forward  and  swear  that 
there  were  negatives  to  each  of  these,  after  the  whole  body,  of  which  they 
,were  a  part,  have  solemnly  asserted  that  there  was  no  dissenter?  What 
confusion,  what  excitement  of  the  imagination  must  we  suppose  there  to 
have  been,  when  there  is  this  extraordinary  variance  between  the  testi- 
mony, not  merely  of  different  men,  but  of  the  same  individuals  at  different 
times  and  places!  The  minute  to  which  I  have  referred  says,  "and  no 
other  person  being  nominated,  the  Rev.  Dr.  Beman  was  unanimously  ap- 
pointed such  Moderator;"  and  again,  "no  other  persons  being  put  in 
nomination,  they"  (the  Rev.  Dr.  Mason  and  Mr.  Gilbert)  "  were  unani- 
mously appointed;"  and  again,  "  The  motion  to  adjourn  was  carried  unani- 
mously." Indeed  the  only  exception  to  this  complete  unanimity  is  in 
the  case  of  Dr.  Fisher,  who  is  said  to  have  been  "  chosen  by  a  very  large 
majority."  Perhaps  here  the  objection  will  be  started,  that  according  to 
the  standing  rules  of  the  Assembly,  where  there  is  but  one  nomination, 
the  question  may  be  put  without  reversal,  and  therefore  the  vote  was  tech- 
nically unanimous;  that  the  minute  does  not  mean  unanimous  in  fact,  but 
by  intendment  of  law  unanimous.  Thus  they  may  reconcile  the  dis- 
crepancy. I  am  willing  to  take  this  excuse.  Well  then,  the  minute, 
when  it  speaks  of  Dr.  Beman,  gives,  not  the  fact,  but  the  intendment  of 
law;  but  in  regard  to  Dr.  Fisher  it  gives,  not  the  intendment,  but  the 
fact;  for  it  is  said  that  the  latter  was  elected  by  a  large  majority! 

In  conclusion  of  this  part  of  the  subject,  gentlemen,  I  make  a  re- 
mark, in  which  his  Honour  will  bear  me  out:  that  up  to  the  moment 
when  the  New-school  party  seceded  from  the  General  Assembly  of 
1838,  that  Assembly  had  done  nothing  of  which  they  could  com- 
plain, or  of  which  they  have  complained.  What  they  complain  of  is, 
that  the  officers  of  the  Assembly  of  1837  endeavoured  to  defer,  for  a 
short  period,  the  decision  in  regard  to  the  rights  of  certain  commission- 
ers: they  bring  no  charge  against  the  house  which  was  first  constituted 
with  prayer,  and  afterwards  partially  organized,  before  their  proceedings 
commenced.  On  the  adjournment  in  1837,  the  Assembly  was  dissolved, 
melted  into  thin  air:  the  elements  of  which  it  had  been  formed  still  ex- 
isted, but  as  a  body  it  was  forever  extinct.  In  1838,  met  another  As- 
sembly of  equal  powers,  and,  though  of  instructed  powers  in  relation  to 
the  four  Synods,  fully  capable  of  undoing  whatever  the  former  body  had 
done.  Now  there  was  no  application  made  to  the  Assembly  of  1838,  to 
admit  the  representatives  from  those  Synods  to  the  seats  which  they 
claimed,  and  no  one  complains  of  any  part  of  the  proceedings  of  that 
Assembly.  I  should  be  glad  to  know  then,  by  what  power,  or  for  what 
cause,  the  rights  of  one  hundred  and  fifty  commissioners — the  majority 
of  the  house,  were  trampled  upon,  their  business  being  cast  into  confusion, 
and  their  organization  blown  to  the  winds,  on  account  of  the  misconduct 
of  the  clerks  and  Moderator.    By  what  were  our  proceedings  invalidated? 


318  PRESBYTERIAN  CHURCH  CASE. 

How  were  we  bound  to  answer  for  the  Assembly  of  1S37;  and  what  ope- 
ration had  the  acts  of  that  body  upon  us?  If  either  it  or  its  officers  had 
oftended,  was  it  proper  that  their  sin  should  be  imputed  to  us?  This  is 
imputation  with  a  vengeance — the  offence  of  one  corporate  body  imputed 
to  another!  Suppose  they  complain  of  the  acts  of  1837  as  unconstitu- 
tional and  void,  we  are  not  bound  to  vindicate  those  acts.  If  in  the  heat 
of  excitement  they  choose  to  vilify  and  blacken  even  with  demoniacal 
virulence,  the  Assembly  of  1837,  we  are  not  affected.  They  cannot  stain 
the  reputation  of  the  legitimate  successors  of  that  body.  They  talk  of 
the  acts  of  excision  as  tyrannical  and  cruel,  as  a  despotic  blow.  But 
why  have  they  exscinded  us— the  majority?  Why  have  they  driven  us 
from  the  General  Assembly?  Why  do  they  seek  to  take  possession  of 
the  funds  of  the  Church?  If  on  them  has  been  inflicted  a  despotic  blow, 
have  not  they  dealt  another?  Because  they  were  for  a  time  unjustly  de- 
prived of  control  over  any  part  of  the  funds,  do  they  now  claim  to  con- 
trol every  thing,  even  the  Princeton  Seminary,  which  never  belonged  to 
them,  which  they  have  never  supposed  to  belong  to  them?  I  know  they 
say  that,  by  intendment  of  law,  we  excluded  ourselves.  They  call  us  a 
limb  torn  off  from  the  trunk — a  limb  only  four  or  five  times  as  big  as  the 
body!  This  limb,  bleeding  and  torn,  lies  in  the  dust;  while  the  body, 
but  one-fourth  or  one-fifth  as  large,  lives  and  flourishes!  They  say,  we 
might  have  come  into  their  Assembly,  whenever  we  chose;  that  their 
doors  and  their  arms  were  open  to  us.  This  is  only  adding  insult  to  in- 
jury: it  is  a  mere  mockery.  They  know  that  we,  the  majority,  would 
have  killed  them  by  going  in.  VVhat?  by  intendment  of  law  we  were 
present,  when  if  present  in  fact,  we  should  utterly  have  annihilated  their 
Assembly!  Away  with  all  such  vain  pretexts,  such  shallow  artifices! 
They  were  entirely  separated  from  the  majority:  they  had  exscinded,  not 
merely  four  Synods,  but  the  whole  of  us,  at  one  fell  swoop.  We,  the 
majority,  complained  of  no  grievance.  The  members  of  the  four  Synods 
alone  had  been  aggrieved,  if  any  body;  even  the  others,  that  sympathized 
with  them,  had  suffered  nothing  at  all.  Well,  now,  we  may  retort  upon 
our  opponents,  that  our  Assembly  was  open  to  all  of  them.  Those  who 
had  not  been  excluded,  but  who  went  off  voluntarily,  might,  of  course, 
have  come  back  whenever  they  pleased.  And,  as  to  the  gentlemen  be- 
longing to  the  four  Synods,  they  could  have  returned  to  us  as  easily  as 
we  could  to  them.  We  had  provided  a  mode  for  their  return,  as  they 
say,  they  also  had  for  ours.  Says  the  learned  counsel,  in  the  spirit  of  hu- 
mility, "It  would  have  degraded  us  to  seek  admission  into  your  body, 
after  being  told  that  we  did  not  belong  to  it:  we  meek  and  humble  Chris- 
tians are  too  proud  to  approach  you  in  the  way  which  you  have  chosen 
to  point  out."  Is  this  the  religion  of  the  meek  and  lowly  Jesus?  They 
are  too  proud  to  bow  their  stately  necks  to  the  requirements  of  the 
Church!  Their  manhood  forbids  it.  What?  Call  on  them  to  come  as 
suppliants?  No,  they  must  reign  supreme.  They  will  not  stoop,  or 
abase  their  haughty  diadem.  But  we  may  degrade  ourselves.  We,  the 
majority,  must  follow  the  vagrant  minority,  and,  as  suppliants,  beg  for  ad- 
mission. They  will  not  regard  the  terms  which  we  propose,  but  we  must 
accommodate  ourselves  to  theirs. 

The  gentlemen  on  the  other  side,  talk  of  union  and  harmony,  and  la- 
ment that  these  two  portions  of  the  Church  cannot  be  brought  together 


MR.  PRESTON'S  ARGUMENT. 


319 


again.  This  is  impossible.  See  the  state  of  feeling  which  exists.  You 
have  at  least  a  faint  emanation  from  it  here,  where  the  parties  stand  on  a 
temporal  arena,  like  gladiators,  toe  to  toe,  and  point  to  point.  They  pro- 
pose union  and  harmony,  while  they  are  seeking  either  to  compel  us  to 
join  them,  against  our  will,  or  to  strip  us  of  every  thing  which  we  con- 
sider dear  and  sacred.  Why  hold  out  such  a  delusive  proposition?  Why 
attempt  to  deceive,  by  crying,  peace!  peace!  when  there  is  no  peace? 
They  know  full  well  that  we  can  never  be  of  them,  unless  dragged  in  in 
fragmentary  portions,     No, 

Never  can  true  reconcilement  grow, 

Where  wounds  of  deadly  hate  have  pierced  so  deep. 

.  What  would  probably  be  the  effect  of  a  verdict  establishing  the  mi- 
nority as,  what  they  claim  to  be  by  intendment  of  law,  the  whole  General 
Assembly?  We  appeal  to  the  candour  of  these  gentlemen;  what  would 
you  do  with  the  money,  after  you  had  got  it?  What  with  the  Princeton 
Seminary,  snatched  by  a  trick  from  our  hands?  How  would  you  manage 
it?  How  would  you  manage  the  Seminary  at  Pittsburg;  and  how  the 
affairs  of  the  whole  Church  in  Pennsylvania,  the  South,  and  in  all  the 
length  and  breadth  of  the  United  States?  I  will  tell  you  how:  the  present 
case  shows  it  clearly.  They  have  turned  out  Dr.  Green  first,  and  every 
venerable  pillar  of  the  Church  would  soon  be  prostrated.  They  would 
not  rest  until  every  office,  and  every  post  of  lionour,  was  filled  with  New- 
school  men.  What  have  they  to  do  with  Princeton  Seminary?  Did  they 
establish  it;  or  do  they  support  it?  Is  it  sustained  by  the  gentlemen 
from  the  four  disowned  Synods,  or  by  the  New-school?  It  is,  as  they 
themselves  acknowledge,  an  Old-school  institution.  The  very  ground 
on  which  that  Seminary  stands  was  the  donation  of  the  venerable  man 
whose  name  they  first  struck  off  from  the  list  of  Trustees — Dr.  Green. 
The  object  of  the  relators  now  is,  to  take  this  away  from  him.,  and  to  be- 
stow it  upon  the  representatives  of  the  Synod  of  the  Western  Reserve, 
and  of  the  other  Synods  in  the  interior  of  New  York  state.  I  correct 
myself:  I  am  informed  that  Dr.  Green  gave  only  one-half  of  the  Seminary 
lot.  Suppose  they  gain  possession:  why,  when  the  excitement  of  the 
contest  is  over,  when  coolly  they  can  look  upon  the  past  and  the  future, 
they  must  find  that  your  verdict  has  given  them  that  to  which  they  had 
no  just  title;  that  they  ought  not  to  have  undertaken  the  management  of 
these  charities.  They  have  Auburn  Seminary:  we  do  not  wish  to  exer- 
cise any  control  over  that,  even  could  we  do  so.  Their  funds  we  do  not 
desire  to  touch.  To  their  own  consciences  and  before  God  let  them  an- 
swer— Dare  you,  by  a  mere  intendment  of  law,  seize  upon  our  inheri- 
tance? 

Gentlemen  of  the  jury,  I  have  now  shown  you  what  our  opponents 
claim  to  have  done  in  1838,  and  what  they  actually  did.  From  this  view 
of  the  subject  every  one  must  regard  the  disposal  of  the  Church  funds  ac- 
cording to  the  exigency  of  your  verdict,  should  you  concur  with  the  re- 
lators, as  establishing  their  entire  and  exclusive  control  over  them,  with- 
out restoring  peace  to  the  Church;  as  the  utter  disfranchisement  of  the 
Old-school.  If  their  claim  to  the  funds  of  the  Princeton  Seminary,  sup- 
ported by  the  allegation  of  imaginary  wrongs,  be  sustained,  the  moral 
sense  of  every  one  must  revolt  from  the  decree:  they  have  themselves 


320  PRESBYTERIAN  CHURCH  CASE. 

acknowledged  that  they  had  no  title  to  those  funds.  What  was  their 
feeling  in  1837?  This  carries  us  at  once  to  the  proceedings  of  the  re- 
viled Assembly  of  1837.  What  did  each  party  then  propose?  In  that 
Assembly  the  Old-school  had  a  majority,  and  a  joint  committee,  chosen 
from  both  parties,  the  representatives  of  each  in  the  committee,  forming 
separate  bodies,  negotiated  formally  in  regard  to  the  terms  of  an  amica- 
ble division  of  the  Church.  The  Old-school,  I  say,  had  a  decided  majori- 
ty, and  from  them  came  the  proposition  for  the  appointment  of  this  com- 
mittee, or  rather  this  diplomatic  college;  for  it  was  composed  of  five  from 
each  of  the  two  opposed  parties.  The  Old-school  commissioners  com- 
menced the  negotiation  thus: — Ante.  p.  40. 

"  The  portion  of  the  committee  which  represent  the  majority,  submit 
for  consideration: 

''  1.  That  the  peace  and  prosperity  of  the  Presbyterian  Church  in  the 
United  States,  require  a  separation  of  the  portions  called,  respectively 
the  Old  and  New-school  parties,  &c." 

This  was  the  first  solemn  proposition  made  by  the  committee  of  the 
majority,  to  the  committee  of  the  minority.  And  what  was  the  language 
of  the  others?  Did  they  say,  as  now,  that  if  all  the  funds  were  given  to 
them,  it  would  restore  peace?     Their  first  paper  runs  thus: 

"Whereas  the  experience  of  many  years  has  proved  that  this  body  is 
too  large  to  answer  the  purposes  contemplated  in  the  Constitution,  and 
there  appear  to  be  insuperable  obstacles  in  the  way  of  reducing  the  re- 
presentation: 

"  And  whereas,  in  the  extension  of  the  Church  over  so  great  a  territo- 
ry, embracing  such  a  variety  of  people,  difference  of  view  in  relation  to 
important  points  of  Church  policy  and  action,  as  well  as  theological  opin- 
ion, are  found  to  exist. 

"Now,  it  is  believed,  a  division  of  this  body  into  two  separate  bodies 
which  shall  act  independently  of  each  other,  will  be  of  vital  importance 
to  the  best  interests  of  the  Redeemer's  kingdom." 

"  Difference  of  view  in  relation  to  important  points  of  Church 
policy  and  action,  as  well  as  theological  opinion,  are  found  to  ex- 
ist.'^  Such  was  the  language  of  the  New-school,  before  the  exacerba- 
tions of  this  melancholy  contest  had  so  embittered  their  spirits.  Then 
they  say,  "  Noiv,  it  is  believed,  a  division  ivill  be  of  vital  importance 
to  the  best  interests  of  the  Redeemer'' s  kingdom.^''  Yet  here  they  tell 
us,  that  a  separation  would  be  unnatural:  that  the  two  parties  must  be 
kept  together  by  compulsion;  that  we  must  be  bound  hand  and  foot, 
manacled,  and  delivered  over  by  the  law  to  them,  as  the  only  means  of 
preventing  this  division,  which  is  of  "  vital  importance  to  the  Redeem- 
er's kingdom."  On  this  view  of  the  necessity  of  the  case,  at  that  time, 
they  go  on  to  propose — I  am  speaking  the  language  of  the  Minutes — 
that, 

"  The  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,  shall  be  divided  into  two  bodies." 

This  is  their  proposition  founded  on  the  foregoing  acknowledgment, 
that  division  was  necessary,  on  account  of  the  wide  differences  that  had 
grown  up  in  the  Church,  in  relation  to  its  policy  and  action,  and  even  as 
regarded  its  faith.  Farther,  they  admit  the  power  of  the  General  Assem- 
bly to  act  in  this  matter,  with  the  proviso,  however,  that  the  final  deci- 


MR.  PRESTON'S  ARGUMENT.  321 

sion  of  the  question  shall  be  referred  to  the  Presbyteries.  Then,  in 
offering  terms  of  divisionj  they  make  ten  distinct  specifications,  the  last 
of  which  runs  thus: 

"  10.  The  Princeton  Seminary  funds  to  be  transferred  to  the  Board  of 
Trustees  of  the  Seminary,  if  it  can  be  so  done  legally  and  without  forfeit- 
ing the  trusts  upon  which  the  grants  were  made;  and  if  it  cannot  be  done 
legally  and  according  to  the  intention  of  the  donors,  then  to  remain  with 
the  present  Board  of  Trustees  until  legislative  authority  be  given  for  such 
transfer.  The  supervision  of  said  Seminary,  in  the  same  manner  in 
which  it  is  now  exercised  by  the  General  Assembly,  to  be  transferred  to 
and  vested  in  the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States"  (the  Old-school  Assembly)  "  to  be  constituted.  The  other 
funds  of  the  Church  to  be  divided  equally  between  the  two  Assemblies." 

They  offer  then  to  transfer  the  whole  Seminary  fund  to  these  very 
gentlemen  whom  I  now  represent;  but  when  we  merely  accede  to  the 
proposition,  merely  repeat  their  own  words,  we  are  accused  of  a  fraudu- 
lent intention.  It  is  said  that  under  cover  of  a  liberal  offer,  we  wish  to 
retain  every  vestige  of  the  property.  Yet,  I  repeat  it,  in  the  proposition 
thus  characterized,  we  use  their  own  terms,  and  unless  they  intended 
fraud,  how  can  these  terms  become  fraudulent  in  our  mouths?  If  there 
be  any  covert  fraud  they  alone  are  responsible  for  it — it  is  theirs,  not 
ours.  "The  other  funds  of  the  Church  to  be  equally  divided  between  the 
two  Assemblies" — of  course,  they  mean,  if  the  intention  of  the  donors 
will  permit.  If  this  be  not  their  meaning,  they  show  even  more  astute- 
ness than  my  learned  friend  would  ascribe  to  us,  when  we  repeat  the 
words  by  them  put  into  our  mouths.  They  propose  that  half  of  the 
other  funds  shall  be  transferred  to  them,  whatever  the  intention  of  the 
donors  may  have  been — that  they  shall  have  half  at  any  rate;  and  then  a 
chance  of  getting  the  rest,  by  reference  to  the  will  of  the  donors! 

In  their  second  paper,  which  immediately  follows  that  from  which  I 
have  read,  the  committee  of  the  minority  object  to  the  use  of  certain 
terms  employed  by  the  others,  and  insist  upon  an  equal  division  of  the 
funds.  Then  comes  No.  2,  of  the  majority.  First,  they  agree  to  accept 
several  propositions  of  the  minority,  with  different  modifications,  and  in 
regard  to  the  division  of  the  property  speak  thus: 

"5.  We  agree,  in  substance  to  the  proposal  in  No.  10,  and  offer  the 
following  as  the  form  in  which  the  proposition  shall  stand:  that  the  cor- 
porate funds  and  property  of  the  Church,  so  far  as  they  appertain  to  the 
Theological  Seminary  at  Princeton,  or  relate  to  the  professors'  support  or 
to  the  education  of  beneficiaries  there,  shall  remain  the  property  of  the 
body  retaining  the  name  of  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America;  that  all  other  funds  shall  be 
equally  divided  between  the  new  bodies,  so  far  as  it  can  be  done  in  con- 
formity with  the  intentions  of  the  donors;  and  that  all  liabilities  of  the 
present  Assembly  shall  be  discharged  in  equal  portions  by  them;  that  all 
questions  relating  to  the  future  adjustment  of  this  whole  subject  upon  the 
principle  now  agreed  on,  shall  be  settled  by  committees  appointed  by 
the  new  Assemblies  at  their  first  meeting  respectively;  and  if  these  com- 
mittees cannot  agree,  then  each  committee  shall  select  one  arbitrator,  and 
these  two,  a  third,  which  arbitrators  shall  have  full  power  to  settle  finally 
the  whole  case  in  all  its  parts;  and  that  no  person  shall  be  appointed  an 

41 


322  PRESBYTERIAN  CHURCH  CASE. 

arbitrator,  who  is  a  member  of  either  Church;  it  being  distinctly  under- 
stood that  whatever  difficulties  may  arise  in  the  construction  of  trusts, 
and  all  other  questions  of  power,  as  well  as  right,  legal  and  equitable, 
shall  be  finally  decided  by  the  committees,  so  as  in  all  cases  to  prevent 
an  appeal  by  either  party  to  the  legal  tribunals  of  the  country." 

This  is  the  offer  of  the  Old-school,  and  they  use  almost  the  very  terms 
put  into  their  mouths  by  the  other  party.  But  the  proposition  for  the 
appointment  of  committees  to  adjust  the  matter,  and  of  arbitrators,  with 
*<full  power  to  settle  finally  the  whole  case  in  all  its  parts,"  is  original 
with  them.  The  provision  too,  which  guards  against  any  appeal  *'  to  the 
legal  tribunals  of  the  country,"  comes  from  the  Old-school.  The  New- 
school  had  declared,  "that  a  division  was  of  vital  importance  to  the  best 
interests  of  the  Redeemer's  kingdom,"  and  in  view  of  this,  we  proposed 
the  appointment  of  arbitrators,  who  might  adjust  the  whole  plan,  pledg- 
ing ourselves  to  abide  by  their  decision,  and  hoping  to  save  the  Church 
from  presenting  this  unusual,  and  humiliating  spectacle,  one  portion  being 
dragged  by  the  other  before  a  public  tribunal  of  justice,  there  to  contest 
with  the  acrimony  and  violence  incident  to  such  proceedings  as  the  pre- 
sent, their  respective  rights,  exposed  to  the  gaze  and  scandal  of  the  whole 
world.  In  the  spirit  of  equity,  and  to  preserve  the  peace  of  the  Church, 
they  propose,  what  the  dictates  of  their  religion  enjoin,  to  submit  the 
controversy  to  the  decision  of  an  impartial  tribunal,  to  avoid  the  pain  and 
reproach  of  engaging  in  public  litigation.  But  this  was  not  the  purpose 
of  our  opponents;  it  did  not  suit  their  views.  Such  an  arbitration  would 
have  been  not  only  possible,  but  also  consistent  with  the  strictest  equity. 
But  here  the  two  parties  would  have  been  equal;  the  other  side  could 
not  have  rested  their  case  upon  a  bare  intendment  of  law;  therefore  they 
would  not  assent  to  the  proposition.  Here  is  what  the  committee  of  the 
minority  answer.  At  this  time  it  is  evident  that  they  had  not  yet  con- 
sulted "counsel  learned  in  the  law,"  and  did  not  understand  legal  techni- 
calities. 

"  3.  We  assent  to  the  modification  of  No.  10,  by  No.  5  of  the  propo- 
sitions submitted,  with  a  trifling  alteration  in  the  phraseology,  striking  out 
the  words,  "  Shall  remain  the  property  of  the  body  retaining  the  name 
of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States 
of  America,"  and  inserting  the  words,  "  Shall  be  transferred  and  belong 
to  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States 
of  America,  hereby  constituted." 

Such  was  the  feeling  of  the  parties  in  1837,  and  such  their  views  in 
regard  to  the  disposal  of  the  funds.  I  think  now,  that  no  impartial  per- 
son can  charge  us  with  a  violent  attempt  to  seize  upon  the  property  of 
the  Church.  I  say  it,  and  say  it  boldly,  that  a  more  just  and  liberal  pro- 
position than  that  made  by  the  Old-school,  could  not  have  been  devised 
by  any  court  of  equity  in  the  land.  Three  honourable  and  impartial 
men,  of  other  religious  denominations,  to  settle  all  matters  in  dispute,  and 
we  pledged  to  abide  by  their  decree,  and  to  make  such  division  of  the 
property  as  they  should  direct.  Yes,  we  were  willing  to  give  up  every 
cent,  if  they  should  so  determine;  and  if  our  opponents  had  acceded  to 
these  terms,  and  the  arbitrators  had  decided  that  we  should  surrender  all, 
even  Dr.  Green's  donation,  had  they  but  left  us  the  Doctor  himself,  we 
would  have  agreed. 


MR.  PRESTON'S  ARGUMENT. 


323 


I  have  thus  shown  you  what  the  Old-school  intended  in  1837,  and  now, 
at  this  moment,  they  are  ready  to  bind  themselves  to  the  same  terms. 
Here  in  court,  we  will  sign  the  agreement,  if  the  gentlemen  on  the  other 
side  but  say  the  word,  and  all  are  bound  to  abide  the  issue,  so  as  to  relieve 
both  parties,  and  the  whole  Presbyterian  Church  from  the  scandal  of 
these  proceedings. 

This  they  were  willing  to  do  in  1837,  and  are  still  willing  to  do.  I 
propose  now  to  show  you,  gentlemen,  what  they  have  actually  done,  how 
they  did  it,  and  by  what  authority.  I  know  that  you  are  tired  of  these 
details;  and  I  am  ashamed  of  being  obliged  to  tax  farther  your  patience. 
What  we  have  done  is  the  very  thing  so  nearly  agreed  upon  between  the 
two  parties.  First,  however,  I  must  dispose  of  a  preliminary  matter 
which  has  been  used  on  the  other  side  for  effect,  to  prejudice  you  against 
my  clients.  The  learned  counsel  has  supposed,  according  no  doubt  to  his 
instructions,  that  the  gentlemen  of  the  Old-school  came  up  to  the  Assem- 
bly of  1837,  pre-determined  to  exscind  a  portion  of  their  brethren,  and 
thus  to  insure  a  vote,  on  certain  points,  agreeable  to  their  own  views.  He 
would  have  you  believe  that  they  had  entered  into  a  plot,  a  conspiracy, 
to  secure  to  themselves  a  decided  majority.  This  is  a  great  mistake — 
the  very  reverse  of  the  real  facts,  as  the  documents  in  evidence  them- 
selves clearly  show.  How  greatly  has  my  learned  friend  mistaken  our 
views  and  intentions.  We  were  the  ones  to  propose  the  appointment  of 
the  joint  committee  of  five  from  each  party:  the  proposition  for  an  amica- 
ble adjustment  of  all  matters  in  dispute  came  from  us.  By  the  refusal 
of  the  New-school  to  accede  to  any  terms  of  division,  we  were  driven  to 
the  wall,  we  were  compelled  to  adopt  the  measures  of  excision.  May 
we  not  rather  say  that  our  opponents  had  formed  a  conspiracy,  when,  pro- 
fessing to  acquiesce  in  a  peaceful  separation,  they  could  not  be  brought 
to  any  terms  of  compromise?  But  we  will  rather  suppose,  that  the  plan 
for  division  failed,  simply  because  both  parties  could  not  see  the  same 
things  in  the  same  point  of  view. 

When  this  expedient  for  restoring  peace  had  failed,  another  proposition 
was  made  by  the  Old-school,  and  these  successive  but  ineffectual  attempts 
on  our  part  show  clearly  the  absence  of  any  conspiracy,  or  covert  design. 
This  proposition  was  the  same  afterwards  made  by  our  opponents — the 
citation  of  certain  judicatories  for  trial  at  the  bar  of  the  General  Assem- 
bly. It  was  carried;  but,  strange  as  it  may  seem,  though  they  now  say 
that  this  was  the  only  constitutional  method  of  dealing  with  the  recusant 
Synods,  for  their  departure  from  our  Confession  of  Faith  and  Form  of 
Government,  every  New-school  man  voted  against  it — it  was  a  pure 
party  vote.  Every  man  of  them,  though  they  had  acknowledged  that 
"  difference  of  view  in  relation  to  important  points  of  Church  policy  and 
action,  as  well  as  theological  opinion,"  had  been  found  to  exist,  though 
they  had  acknowledged  this  on  the  record;  and  though  now  they  con- 
tend that  citation  would  have  been  the  right  measure — every  man  voted 
against  the  process  of  citation.  I  hold  in  my  hand  a  list  of  the  yeas  and 
nays,  from  which  this  fact  is  apparent.  In  what  situation  were  these 
gentlemen  to  try  the  judicatories  to  be  cited?  They  who  were  to  sit  in 
judgment  had  already  prejudged  the  case.  By  what  mode  could  we 
hope  to  enforce  the  laws  of  the  Church?  The  farce  of  a  trial  had  already 
been  gone  through  with.      Our  opponents,  while  acknowledging  differen- 


324  PRESBYTERIAN  CHURCH  CASE. 

CCS  of  faith,  so  great,  that  a  division  of  the  Church  was  "  of  vital  impor- 
tance to  the  hest  interests  of  the  Redeemer's  kingdom,"  nevertheless  re- 
fused to  subject  themselves  to  trial,  or  ecclesiastical  censure.  And  who 
were  to  try  them?  They  themselves.  What  would  have  been  done,  if 
the  judicatories  cited  had  not  attended,  had  refused  to  obey  the  citation? 
The  Assembly  must  then  have  proceeded  against  them  for  contumacy. 
They  would  have  yet  stood  out  against  its  decrees,  supported  in  their  in- 
subordination by  a  powerful  minority  in  that  body,  and  would  have  de- 
fied all  process.  The  case  could  never  have  been  tried  upon  its  merits. 
Something  like  this  had  before  been  experienced  in  the  case  of  Mr. 
Barnes.  The  majority  saw  the  danger  of  being  entirely  foiled  in  their 
purpose;  and  even  if  they  should  not  be  ultimately  foiled,  the  difficul- 
ties to  be  overcome,  the  excitement,  the  party  contention  and  violence, 
the  confusion  and  discord,  which  such  proceedings  must  inevitably  pro- 
duce. But  the  other  party  had  all  opposed  the  citation,  and  this  should 
have  forever  closed  tiieir  mouths. 

What  was  the  next  best  mode  of  proceeding?  The  act  of  excision. 
It  was  the  only  mode  left  by  which  the  purpose  could  be  effected. 

"  Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America: — 1.  That  in  consequence  of  the 
abrogation  by  this  Assembly  of  the  Plan  of  Union  of  1801,  between  it 
and  the  General  Association  of  Connecticut,  as  utterly  unconstitutional, 
and  therefore  null  and  void  from  the  beginning,  the  Synods  of  Utica,  Ge- 
neva, and  Genesee,  which  were  formed  and  attached  to  this  body  under 
and  in  execution  of  said  '  Plan  of  Union'  be,  and  are  hereby  declared  to 
be  out  of  the  ecclesiastical  connexion  of  the  Presbyterian  Church  of  the 
United  States  of  America,  and  that  they  are  not  in  form  or  in  fact  an  in- 
tegral portion  of  said  Church." 

This  is  the  celebrated  act,  called  the  "  act  of  excision."  These  Synods 
were  "declared  to  be  out  of  the  ecclesiastical  connexion  of  the  Presby- 
terian Church,"  and  were  hereby  excluded.  The  "Plan  of  Union"  had 
before  been  pronounced  unconstitutional  and  void,  and,  now,  all  the  bo- 
dies that  had  grown  up  under  it,  fell  with  it  to  the  ground.  Having 
already  passed  the  act  of  excision,  the  Assembly  merely  declared  by  this 
resolution,  what  was  the  necessary  consequence  of  the  abrogation  of  the 
"  Plan" — that  the  Synods  formed  in  execution  of  it,  were,  as  Church  ju- 
dicatories, dissolved.  This  act  was  merely  declarative.  But  it  is  most 
important  that  you  should  observe  tlie  reservations.  Our  opponents 
would  have  you  believe  that  it  was  a  bloody  and  Draconic  sentence — a 
sentence  of  temporal  and  spiritual  excommunication.  They  make  a  great 
parade  of  words.  They  allege,  that  these  brethren  have  been  turned  out 
of  our  communion,  and  marked  with  the  stigma  of  heresy.  There  is  no- 
thing like  all  this,  except  in  the  imagination  of  the  parties  concerned.  We 
did  not  harm  a  hair  on  the  head  of  one  individual,  in  all  the  wide  extent 
of  territory  embraced  in  the  four  Synods.  Not  only  so,  but  we  provided 
carefully  for  each  one's  case:  we  shielded  them  all  effectually  from  harm. 
By  this  proceeding  was  not  the  situation  of  a  single  man  made  worse  by 
the  tithe  of  a  hair.      Read  the  following  resolutions: 

Here  Mr.  Preston  read  the  three  remaining  resolutions. —  Vid.  ante, 
p.  46. 

These  resolutions  preserved  the  rights  of  every  man  who  was  really  a 


MR.  PRESTON'S  ARGUMENT.  325 

Presbyterian.  What  was  it  that  they  proposed?  The  "Plan  of  Union" 
had  been  declared  unconstitutional.  It  had  been  shown,  that  these  men 
had  not  entei-ed  the  Church  in  a  proper  manner,  and  now  they  were  told, 
"There  is  a  defect  in  your  title,  and  we  desire  that  you  should  remedy 
that  defect."  Was  there  any  wrong  in  this;  or  was  it  a  captious  direc- 
tion? It  was  as  if  it  had  been  said  to  the  members  of  the  four  Synods,  as 
private  men,  "  There  is  a  flaw  in  the  instrument  by  which  your  ecclesias- 
tical privileges  are  secured;  there  is  a  link  in  the  chain  of  title  defective. 
Go  and  have  the  instrument  renewed."  Or,  '^  Fellow  corporators,  I  per- 
ceive that  there  was  an  error  in  the  mode  of  your  admission:  you  had 
better  remedy  the  evil."  Or,  "  Your  ecclesiastical  bodies  were  estab- 
lished by  mistake;  still  we  do  not  wish  to  cut  you  off  at  one  ruthless 
blow.  We  desire  that  you  should  perfect  your  title,  for  your  own  hap- 
piness." Even  if  we  were  wrong,  had  we  any  evil  design,  in  thus  re- 
mitting them  back  to  their  original  state,  that  they  might  be  organized 
anew  in  a  constitutional  way? 

Gentlemen  tell  us,  that  all  the  Presbyteries  belonging  to  the  four  Synods 
were  regularly  constituted.  What  then  prevents  their  joining  some  other 
Synods  according  to  the  provisions  of  the  act  of  1S37  ?  Let  them  come 
and  show  that  they  are  strictly  Presbyterian,  and  they  will  be  admitted. 
Many  of  them  do  differ  from  us  in  faith,  according  to  their  own  showing: 
those  who  do  not  may  at  any  time  return:  our  arms  are  open  to  receive 
them.  The  mode  has  been  pointed  out;  and  is  it  a  Christian-like  pro- 
ceeding for  them  to  raise  this  clamour,  under  pretext  of  their  exclusion, 
when  a  door  has  been  opened  by  which  all  who  are  really  Presbyterians 
may  freely  enter  ?  We  maintain  that  it  is  impossible  for  them  to  prove 
themselves  such.  They  cannot  say  that  they  are  Presbyterians:  if  they 
could  they  would.  If  they  could  they  were  bound  not  to  separate  from 
us.  But  their  language  is,  ''  Stand  back  :  we  will  not  degrade  ourselves 
by  returning  in  the  manner  prescribed.  We  scorn  to  submit  to  the  disci- 
pline of  the  Church.  We  will  not  say  that  we  are  Presbyterians.  If 
Presbyterians  were  as  thick  as  blackberries,  we  would  not  give  one  upon 
compulsion."  They  cannot  say  that  they  are  Presbyterians.  They  have 
already  admitted  differences  in  point  of  doctrine  and  of  discipline:  they 
cannot  come  back,  and  declare  that  they  belong  to  the  Church. 

Such,  gentlemen,  is  the  mode  provided  by  the  Old-school  for  the  res- 
toration of  those  who  complain  of  being  cut  off,  and  such  is  the  temper 
manifested  by  both  parties.  Those  Synods  which  had  come  in  under  the 
operation  of  the  "Plan  of  Union,"  were  dissolved,  that  their  original  ele- 
ments might  again  unite  and  form  Presbyteries  regularly  organized.  Does 
not  this  appear  to  you  a  most  cruel  and  outrageous  act  ?  Does  it  not  dis- 
play a  most  violent,  lawless,  and  vindictive  temper  ? 

Now,  may  it  please  your  Honour,  what  power  had  the  Assembl)'^  to  do 
this?  In  1837,  the  New-school  party  admitted  that  these  Presbyteries 
had  come  in  under  the  "Plan  of  Union,"  and  appealed  to  that  plan  as  a 
justification.  The  churches  of  which  they  were  composed  had,  many  of 
them,  been  formed  by  virtue  of  it,  and  others  were  forming  up  to  the 
time  of  the  excision,  or  have  been  established  since,  in  the  same  way. 
That  they  had  been  admitted  in  execution  of  the  plan  was  declared  on 
both  sides,  and  the  excision  was  but  the  legitimate  consequence  of  the 
repeal.     These  four  Synods  situated  in  the  western  part  of  the  State  of 


326  PRESBYTERIAN  CHURCH  CASE. 

New-Yorlv,  and  in  Ohio,  embraced  a  tract  of  country  which  in  1801  was 
a  wild,  unsettled  frontier.  It  was  not  then  filled,  as  it  now  is,  with  the 
hum  of  men:  scarcely  a  single  trace  of  civilization  marked  the  far  spread- 
ing wilderness.  And  so  it  continued  certainly  down  to  the  period  of  the 
last  war.  At  that  time  the  whole  region  was  an  untamed  forest,  excepting 
perhaps  a  few  scattered  hamlets.  He  who  rides  over  that  country  at  the 
present  day,  can  hardly  imagine  the  changes  which  the  few  intervening 
years  have  wrought.  The  city  of  Rochester  seems  to  have  sprung  up  as 
it  were  since  yesterday:  it  is  not  of  so  old  a  date  as  the  "  Plan  of  Union." 
Christians  of  different  denominations  were  anxious  that  the  benign  influ- 
ence of  the  blessed  religion  of  the  cross  should  be  shed  upon  the  wandering, 
passing  population  of  these  wide  forests,  a  heterogeneous  mass  of  people 
connected  in  an  informal  and  irregular  state  of  society.  On  one  side  was 
the  Presbyterian  Church,  with  Philadelphia  as  the  centre  of  its  organiza- 
tion: on  the  other  side  the  General  Association  of  Connecticut;  and  be- 
tween the  two  was  this  extended  wilderness,  a  spiritual  waste,  into  which 
missionaries,  both  Presbyterian  and  Congregationalist,  were  from  time  to 
time  sent  forth.  The  two  denominations  were  here  mingled:  it  was  im- 
possible to  establish  a  distinct  church  of  either  sect.  The  Association  of 
Connecticut  therefore  on  the  one  side,  and  the  General  Assembly  on  the 
other,  entered  into  an  agreement  in  regard  to  this  vast  field  of  labour,  and 
adopted  the  "  Plan  of  Union,"  which  has  such  an  important  bearing  upon 
the  present  case. 

The  first  proposal  did  not  however  come  from  Philadelphia;  but  the 
Association  of  Connecticut,  being  nearest  to  the  field  of  missionary  en- 
terprise, sent  delegates  to  the  Assembly,  and  through  them  proposed  to 
that  body  the  adoption  of  a  plan  of  union,  which  should  foster  the  holy 
doctrines  of  Christianity,  and  the  blessings  of  peace  and  harmony,  and 
extend  the  sphere  of  the  benign  charities  of  the  Church.  This  proposal 
struck  the  members  of  the  General  Assembly,  then  recently  organized, 
as  wise  and  benevolent,  and  they  immediately  entered  into  an  agreement 
intended,  however,  for  congregations  in  that  desolate  section  only.  It 
was  agreed  that  the  members  of  one  sect  might  act  officially  with  the  mem- 
bers of  the  other,  on  certain  terms.  It  was  not  proposed,  indeed,  to  form 
in  these  new  settlements  a  complete  Presbyterian  or  Congregational 
Church  organization.  The  means  of  public  worship  only  were  to  be 
afforded,  without  the  establishment  of  any  ecclesiastical  system;  the  plan 
being  intended  only  as  a  temporary  expedient  for  the  new  settlements, 
and  the  two  sects  being  expected  to  separate,  as  soon  as  each  should  have 
increased  sufficiently  to  meet  the  exigencies  of  independent  existence  and 
regular  organization.  The  plan  authorized  a  Presbyterian  church  to  call 
a  Congregational  pastor,  and  a  Congregational  church,  a  Presbyterian 
pastor — the  whole  code,  indeed,  was  appropriate  to  the  region  for  which 
it  had  been  framed,  and,  on  its  face,  was  intended  only  for  that  section  of 
country,  and  the  particular  state  of  society  which  existed  there  at  that 
time,  providing,  as  it  did,  for  the  worship  of  God  in  an  anomalous  man- 
ner. The  plan  itself  did  not  contemplate  the  formation  of  any  Presby- 
teries or  Synods  out  of  these  mixed  materials:  all  such  organizations 
were  cautiously  avoided,  because  the  Assembly  could  not,  by  virtue  of 
its  delegated  authority,  uproot  and  destroy  the  whole  Presbyterian  sys- 
tem, nor  had  the  fathers  of  the  Church  any  inclination  to  do  so.     Congre- 


MR.  PRESTON'S  ARGUMENT. 


327 


gatlonalists  were  not  to  be  governed  by  Presbyterians,  nor  Presbyterians 
by  Congregationalists.  The  moment  that  Congregationalists  had  been 
allowed  to  organize  themselves  in  Presbyteries  and  Synods  connected 
with  us,  there  would  have  been  a  dissolution  of  our  Church,  and  a  re- 
organization— the  production  of  a  mule  by  unnatural  copulation.  There- 
fore it  was  not  intended  that  Presbyterians  and  Congregationalists  should 
thus  unite;  but,  gentlemen,  the  intention  of  those  who  draw  an  instru- 
ment has  frequently  very  little  influence  upon  the  effects  produced  by  it. 
Who  that  writes  a  constitution  to  day  can  tell  what  construction  it  will 
wear  in  a  few  years,  or  even  months.  No  matter  what  his  intention  may 
be,  by  intendment  of  law,  and  the  restless  working  of  human  ingenuity, 
the  instrument  may,  from  its  inherent  defects,  be  diverted  entirely  from 
its  original  purpose.  In  those  waste  places  of  the  Church  was  establish- 
ed an  anomalous  system  of  worship,  under  which  peace  and  harmony  for 
many  years  reigned;  but  it  suited  only  the  scattered  and  transitory  popu- 
lation of  the  new  settlements.  It  was  not  intended  for  a  thickly  peopled 
region,  and  it  was  always  supposed  that  when  the  two  distinct  sects 
should  each  become  sufficiently  numerous  for  separate  existence,  in  its 
own  peculiar  organization,  they  would  no  longer  worship  at  the  same 
altar,  and  adhere  to  the  same  form  of  ecclesiastical  rule;  but  would  sepa- 
rate, appealing  and  becoming  subordinate,  each  to  its  respective  head. 
(Here  the  jury  were  allowed  a  recess  often  minutes.) 
When  I  left  off',  I  was  stating  and  endeavouring  to  show,  that  the 
"  Plan  of  Union"  was  intended  to  be  limited  as  to  time,  by  the  extent  of 
the  term  "  new  settlements."  Each  of  the  two  parties  to  the  agreement 
or  treaty  considered  it  as  confined  in  its  operation  to  such  settlements,  and 
that  it  authorized  nothing  more  than  the  formation  of  mixed  societies  for 
the  worship  of  God,  in  the  wilderness,  among  a  scattered  and  floating 
population,  where  enough  of  either  sect  to  form,  conveniently,  homoge- 
nous congregations  were  not  to  be  found.  When,  therefore,  this  time 
was  at  an  end,  when  those  regions  became  densely  peopled,  and  each  de- 
nomination was  able  to  sustain  itself,  the  different  portions  of  the  mixed 
congregations  should  have  segregated  themselves,  each  subjecting  itself 
to  its  own  peculiar  administration.  In  other  words,  by  the  "  Plan  of 
Union,"  churches  of  anomalous  structure  were  allowed  to  be  created  on 
certain  terms,  but  it  was  never  contemplated  that  the  fundamental  princi- 
ples of  Presbyterianism  should  be  uprooted,  that  such  churches  should 
continue  to  exist  after  the  necessity  that  occasioned  them  had  ceased. 
But,  as  it  turned  out,  the  members  of  the  two  sects  thus  united  did  not 
separate:  perhaps,  indeed,  it  might  have  been  foreseen,  that  when  such 
relations  as  sprang  up  in  consequence  of  the  "  Union,"  had  become  fa- 
miliar, the  connexion  could  not  easily  be  dissolved.  It  might  have  been 
foreseen,  that  the  sympathies  excited  by  such  habitual  association  would 
create  indissoluble  ties,  and  that  the  two  sects  must  ever  after  be  inclined 
to  unite,  even  if  a  dissolution  were  effected.  And  it  so  happened,  that 
when  the  time  came  for  the  "  Plan"  to  be  abandoned,  according  to  its 
own  limitation,  it  was  not  abrogated;  instead  of  the  two  denominations' 
forming  independent  bodies,  they  still  remained  in  connexion,  and,  not 
content  with  even  this,  proceeded  to  establish  a  regular  church  organiza- 
tion. In  the  first  place,  they  formed  churches;  and  these  were  recog- 
nised by  the  Presbyteries,  and,  even  by  the  General  Assembly  itself. 


328  PRESBYTERIAN  CHURCH  CASE. 

Next,  they  proceeded  to  constitute  Presbyteries;  and  next,  Synods  were 
established.  Such  results  were  certainly  never  contemplated  by  those 
who  formed  the  "  Plan:"  it  did  not  give  authority  for  these  proceedings; 
it  did  not  authorize  the  formation  of  a  single  Presbytery  or  Synod,  from 
the  heterogeneous  materials  thrown  together  by  the  "  Union"  of  ISOl. 
Still  the  practice  of  associating  in  these  anomalous  churches  gained 
ground,  and  the  mixed  Presbyteries  composed  of  such  members  did 
not  depend  on  the  fundamental  rules  and  principles  of  either  one  of  the 
denominations  to  which  their  elements  belonged. 

I  have  said,  that  the  "  Plan  of  Union"  did  not  authorize  these  ecclesi- 
astical organizations,  but  that  still  they  were  established  under  it.  There 
can  be  no  doubt  of  the  existence,  in  1837,  of  numerous  mixed  churches; 
and  not  only  did  they  exist,  but  a  large  majority  of  the  churches  belong- 
ing to  many  of  the  Presbyteries  were  of  this  mixed  character.  The  at- 
tention of  the  General  Assembly  for  a  long  time  had  not  been  called  to 
the  suijject.  The  "  Plan,"  upon  its  front,  seemed  to  allow  of  little  more 
than  a  relaxation  of  discipline,  a  temporary  indulgence,  in  which  that 
body  had  acquiesced  from  a  hope  that  thereby  the  doctrines  of  their  holy 
religion  would  be  more  widely  propagated.  They  did  not  examine  into 
the  matter:  though  Presbyteries  and  Synods  were  formed  under  the 
"  Plan,"  the  minutes  show  that  no  examination  was  ever  made.  A 
slight  relaxation  of  discipline  it  was  hoped  would  be  productive  of 
great  good.  Such  considerations  seem  to  have  monopolized  entirely 
the  thoughts  of  the  fathers  of  the  Church,  and  they  did  not  dream  of 
the  dangers  which  threatened  it.  In  the  prospect  of  general  and  last- 
ing benefit  they  winked  at  what  they  considered  trifling,  and  but  tempo- 
rary irregularities.  In  this  they  obeyed  only  the  ordinary  impulses  of 
our  nature. 

Nevertheless,  they  had  opened  a  most  dangerous  flood  gate  of  evil, 
and  a  torrent  of  disorders  rushed  into  the  Church.  They  had  planted  in 
their  soil  a  strange  vine,  and  by  the  Church  had  it  been  watered  and  per- 
mitted to  grow  upon  the  outside  of  the  ecclesiastical  building.  I  will  not 
say  it  was  a  parasitic  plant,  but  it  spread  rapidly,  and  twined  itself  over 
the  wall,  and  before  any  danger  was  apprehended,  had  insinuated  its  ten- 
drils through  every  crevice,  until  they  had  reached  the  inside,  and  des- 
troying the  cement  which  at  first  had  bound  the  stones  compactly  toge- 
ther, threatened  to  demolish  the  fabric  by  which  its  luxuriant  growth  had 
been  sustained.  But  for  a  long  time  the  danger  was  not  discovered;  I 
am  sorry  that  it  was  not  seen  earlier;  for  when  the  alarm  was  first  given, 
the  whole  building  had  begun  to  totter,  the  mortar  was  gone  and  the 
stones  trembled.  Indeed  it  was  found  necessary  to  tear  down  a  portion 
of  the  wall,  in  order  to  detach  the  foreign  growth,  and  to  save  the  re- 
maining parts  of  the  fabric  from  ruin. 

It  is  curious  to  observe,  that  about  the  time  when  this  relaxation  of 
church  discipline  was  first  permitted,  there  was  an  acquiescence  in  other 
and  equally  dangerous  abuses.  Permission  was  granted  to  delegates  from 
bodies  not  at  all  Presbyterian,  to  enter  the  various  judicatories;  and  these 
delegates  were  allowed  to  sit,  debate,  and  vote  exactly  in  the  sam.e  man- 
ner as  if  they  had  belonged  to  the  Church.  The  acts  permitting  these 
disorders  have,  however,  most  of  them,  since  been  repealed.  Yet,  although 
such  departures  from  Presbyterian  principles  were  wrong,  God  forbid 


MR.  PRESTON'S  ARGUMENT.  339 

that  I  should  censure  the  wisdom  and  piety  of  our  ancestors.  They 
acted,  as  they  imagined,  for  the  best,  under  the  guidance  of  the  clearest 
light  which  was  afforded  them.  Doubtless  they  supposed  that  as  society, 
in  those  regions  for  which  the  "  Plan  of  Union"  was  provided,  advanced 
to  a  more  perfect  state,  the  Presbyterian  Church  would  be  reintegrated, 
and  at  length  entirely  accord  with  the  symmetrical  arrangement  of  which 
they  drew  example  from  the  times  of  the  apostles. 

But  unpleasant  differences  sprung  up  in  the  Church,  which  during  a 
prolonged  period  of  contention,  have  continually  threatened  disastrous 
collisions,  and  the  final  ruin  of  both  parties  engaged.  These  difficulties 
some  years  ago  riveted  the  attention  of  many  persons  upon  the  "  Plan  of 
Union"  and  its  fruits,  and  they  became  the  subject  of  much  warm  dis- 
cussion. In  1826  this  matter  was  brought  forward,  and  for  a  time  agita- 
ted the  Assembly,  which  then  already  was  divided  into  two  parties  in 
regard  to  it.  In  1831,  there  was  a  desperate  struggle  between  these  par- 
ties, and  fires  were  kindled  which  threatened  to  consume  the  peace  of  the 
religious  community;  and  for  seven  years  thereafter  the  same  subject 
was  a  continual  source  of  contention  and  conflict,  until  they  resulted  in  the 
scenes  exhibited  in  1838,  in  the  church  in  Ranstead  Court. 

Now  one  of  two  things  is  perfectly  manifest:  the  Assembly  at  the 
time  of  the  creation  of  the  four  Synods  and  the  Presbyteries  which  they 
embrace,  either  knew  that  they  were  composed,  in  large  part,  of  mixed 
or  Congregational  churches;  or  they  did  not  know  the  fact,  and  took  for 
granted  that  the  churches  were  all  strictly  Presbyterian.  If  they  knew 
it,  and  if  these  churches  came  in  under  the  "  Plan,"  that  plan  being  un- 
constitutional, they  had  no  right  to  admit  them,  and  could  not  bind  them- 
selves or  their  successors  by  the  admission.  If  the  churches  came  in 
on  any  other  ground  than  the  '^  Plan  of  Union,"  it  cannot  be  denied  by 
any  one  that  the  Assembly  had  no  power  to  receive  them — to  receive 
any  other  than  Presbyterian  churches.  The  "  Plan"  furnishes  the  only 
pretext  for  their  recognition.  If  they  knew  that  these  churches  were 
Congregational  or  mixed,  and  yet  admitted  them,  they  trampled  on  the 
fundamental  principles  of  Presbyterianism,  dissolved  the  Presbyterian 
Church  to  which  that  charter  of  incorporation  was  given,  and  formed  a 
new  ecclesiastical  establishment.  If  at  that  time  it  was  unknown  that 
these  churches  were  not  Presbyterian  ;  if  while  in  fact  something  else, 
they  came  in  the  outward  form  and  garb  of  Presbyterianism,  and  were 
admitted  by  mistake;  when  the  falsehood  was  detected,  when  the  error  was 
discovered,  when  they  proved  to  be  Congregational  or  mixed  churches, 
then  the  only  course  that  could  be  pursued  was  to  turn  them  out,  and 
completely  re-organize  those  portions  of  the  Church  which  had  been 
irregularly  constituted.  In  every  point  of  view  the  subsequent  act,  the 
act  of  1837,  was  necessary,  and  most  clearly  within  the  jurisdiction  of  the 
Assembly.  By-and-by  we  shall  show,  that  that  body  has  more  power 
than  was  requisite  for  this  purpose. 

That  is  not  a  Presbyterian  church  which  is  composed  of  other  than 
Presbyterian  members.  Who  has  a  right  of  representation  in  the  Gene- 
ral Assembly?  An  association  of  Presbyterian  churches.  And  what 
must  be  their  component  parts?  Pastors  and  ruling  elders.  If  a  church 
be  otherwise  constituted  it  is  not  a  Presbyterian  church,  by  whatever 
name  vou  may  call  it:  about  this  there  will  not  be  any  dispute.  A  General 
^  -  42 


330  PRESBYTERIAN  CHURCH  CASE. 

Assembly  therefore,  cannot  admit  into  its  communion  any  other  than 
Presbyterian  congregations.  The  admission  of  others  is  forbidden  by 
the  Constitution  and  laws,  the- Catechisms,  the  Confession  of  Faith,  and, 
as  we  believe,  by  the  eternal  record  of  the  Bible.  The  fundamental 
maxim  of  Presbyterianism  is,  that  its  forms  of  doctrine  and  of  govern- 
ment are  of  divine  institution  and  ordination,  and  that  no  human  power 
has  a  right  to  repeal  the  acts  of  God.  This  belief  lies  at  the  very  foun- 
dation of  the  whole  system.  The  principles  of  our  faith  and  worship 
came  directly  from  the  Saviour,  and  have  been  handed  down  to  us. — 
Such  is  our  confidence;  and  of  course  these  principles  admit  of  no  altera- 
tion— allow  none  to  deviate.  In  the  belief  of  Presbyterians,  I  say,  Pres- 
byterianism is  of  divine  ordination,  established  by  our  Lord  himself,  and 
man  cannot  set  it  aside  or  abrogate  any  portion  thereof.  They  believe 
that  by  divine  ordination.  Presbyteries  are  to  be  formed  of  Presbyterian 
pastors  and  ruling  elders;  that  this  order  cannot  be  changed  or  destroyed. 
That  a  Synod  must  be  composed  in  the  same  manner;  that  this  law  can- 
not be  abrogated.  It  is  vain  to  say  that  man  may  alter  or  destroy  a 
system  of  heavenly  origin:  it  is  the  fundamental  maxim  of  the  Church, 
that  what  God  has  done,  no  man  may  undo.  This  is  the  corner  stone  of 
the  whole  Presbyterian  system— of  every  system  of  faith.  Now,  if  you 
take  an  indigested  mass,  a  confused  congeries  of  individuals  or  churches, 
you  may  perhaps  have  a  very  effective  organization,  but  not  a  Presbyte- 
rian system.  The  whole  Church  which  I  represent,  reposes  on  the  New 
Testament  as  its  constitution:  its  faith  is,  that  God  established  it;. that  its 
principles  were  received  from  his  lips,  and  from  his  inspired  apostles. 
Ours,  we  believe,  is  the  true  primitive  Church — the  apostolic  Church. 
We  say  to  such  men  as  those  whom  we  have  excluded — Congregation- 
alists  and  representatives  of  mixed  churches — not  in  the  spirit  of  that 
awful  denunciation  put  in  our  mouths,  but  in  the  spirit  of  Presbyterian- 
ism, "  We  do  not  know  you.  You  may  be  good  Christians;  you  may 
be  wise  men;  but  you  are  not  Presbyterians.  We  don't  know  you,  and 
you  know  not  us.  We  should  not  be  Presbyterians  if  we  received  you." 
If  I  am  an  Episcopalian  and  you  are  a  Roman  Catholic,  can  this  Church 
admit  us  to  its  communion?  So  soon  as  we  were  admitted,  it  would  cease 
to  be  what  it  is  now:  instead  of  a  Presbyterian  Church  it  would  be  an 
amalgam  of  distinct  sects;  it  would  be  like  none  of  its  component  parts. 

What  is  to  prevent  any  member  of  a  church  thus  composed — a  mixed 
church — of  claiming  the  privileges  and  immunities  of  either  sect?  He 
may  be  either  a  Presbyterian  or  a  Congregationalist,  or  he  may  be  neither, 
or  both.  If  the  Presbytery  calls  him  to  account,  and  would  try  him  for 
a  misdemeanour,  he  holds  up  the  "  Plan  of  Union,"  and  claims  to  be  a 
Congregationalist.  If  his  own  congregation  commence  process  against 
him,  he  is  a  Presbyterian.  He  is,  in  reality,  a  sort  of  bat,  flying  in  the 
twilight,  and  bearing  affinity  to  neither  the  beasts  nor  the  birds. 

Now,  gentlemen,  looking  at  the  "Plan  of  Union"  in  this  point  of 
view,  I  (lo  not  mean  to  contend  that  it  was  not  just  and  proper.  If  it  was 
merely  a  relaxing  of  discipline,  a  dispensation  from  church  censure,  it 
may  have  been  perfectly  wise  and  justifiable.  It  had  this  exigency  and 
no  more:  that  Presbyterians  and  Congregationalists,  otherwise  bound  to 
preserve  their  unity,  and  distinctive  organizations,  might  associate  to- 
gether, without  becoming  liable  to  Church  censure.     But  when  Congre- 


MR.  PRESTON'S  ARGUMENT.  33  j 

gationalists  coming  in  under  this  plan,  claim  to  be  a  portion  of  our  Church, 
to  be  represented  in  its  judicatories,  then  the  question  arises,  whether 
their  admission  is  in  accordance  with  the  fundamental  law  of  Presbyte- 
rianism.  Presbyterians  believe  that  an  order  of  Church  officers  called 
ruling  elders,  is  of  divine  appointment.  But  can  they  try  a  Congregation- 
al church,  which  has  no  ruling  elders — try  it  for  the  want  of  them? 
Why  the  latter  would  reply,  "We  don't  believe  in  ruling  elders." 
How  was  the  General  Assembly  to  try  these  men,  and  for  what?  For 
not  having  in  their  churches  regular  Presbyterian  elderships,  when  they 
do  not  acknowledge  elders  as  of  divine  appointment — when  they  recog- 
nise no  such  ecclesiastical  officers?  Will  you  try  them  for  not  being 
Presbyterians?  If  you  do  try  and  convict  them,  your  jurisdiction  must 
rest  entirely  on  an  intendment  of  law.  Throughout  the  whole  affair  you 
must  consider  the  facts  to  be  otherwise  than  as  they  really  are.  Pro 
hac  vice,  in  order  to  try  them  for  not  being  members  of  the  Church,  you 
must  consider  them  members. 

But  this  Assembly  is  a  quasi  corporate  body,  and  any  infusion  of 
Congregationalism  into  the  Church  which  it  represents,  is  a  derogation 
from  the  Act  of  the  Legislature  by  which  it  became  such.  This  act  does 
not  admit  of  mixed  Synods  and  Presbyteries:  it  is  confined  in  its  opera- 
tion to  a  church  governed  by  ministers  and  ruling  elders.  It  was  not 
granted  to  a  General  Assembly  composed  in  whole  or  in  part  of  commit- 
tee-men, or  their  representatives.  The  words  "ministers  and  elders" 
are  repeated  in  the  act  over  and  over  again.  And  if  the  "Plan  of 
Union"  admitted  any  one  else,  it  was  unconstitutional,  and  the  corpora- 
tion could  have  been  proceeded  against  by  quo  warranto.  Did  the 
Legislature  intend  to  grant  a  charter  to  Presbyterians  alone,  or  to  the 
whole  of  Christendom — to  all  religious  denominations?  The  charter  was 
given  to  none  but  ministers  and  elders,  and  he  who  introduces  any  others 
into  communion  in  its  privileges,  violates  it  both  in  letter  and  in  spirit, 
and  his  act  is  null  and  void.  I  do  not  mean,  however,  to  say,  that  be- 
cause the  Assembly  passed  an  unconstitutional  act,  the  proceedings  of 
all  subsequent  Assemblies,  formed  under  the  operation  of  that  act,  have 
been  utterly  void  and  nugatory:  they  were  still  Assemblies  de  facto, 
though  not  de  jure.  Congress  refused  to  continue  the  charter  of  the 
Bank  of  the  United  States,  and  some  of  its  opponents  took  the  ground 
that  the  act  of  incorporation  was  unconstitutional;  yet  no  one  ever  pre- 
tended that  all  the  transactions  of  the  bank  were  nugatory.  Or,  to 
put  a  still  stronger  case,  the  community  in  general  seems  to  have  settled 
down  in  the  belief,  that  alien  and  sedition  laws  are  unconstitutional;  but 
while  such  laws  were  in  existence,  all  acts  done  in  execution  of  them 
were  considered  valid:  no  one  dreamed  of  regarding  theni  as  null  and 
void:  the  power  to  declare  them  so  was  to  be  found  no  where  but  in 
Congress,  or  in  the  judiciary.  They  had  their  day;  but  now  all  sides 
view  them  as  unconstitutional.  Still  so  long  as  they  existed,  they  were 
law,  and  by  intendment  of  law  were  acquiesced  in  by  a  majority  of  the 
people. 

As  regards  the  act  of  incorporation,  such  a  departure  from  the  funda- 
mental principles  of  Presbyterianism  as  is  involved  in  the  admission  of 
others  besides  ministers  and  ciders,  is  void.  The  General  Assembly  has 
not  the  power  to  transfer  the  franchise  granted  to  them  to  others.     There 


332  PRESBYTERIAN  CHURCH  CA8E. 

is  no  possible  mode  of  divesting  itself  of  its  privileges,  and  bestowing 
them  upon  any  body  else:  the  moment  that  this  is  attempted,  it  ceases  to 
be  the  General  Assembly  for  which  the  act  provides:  the  object  of  the 
act  no  longer  exists.  The  law  granted  the  franchise  to  us,  not  to  Con- 
gregationalits  and  committee-men.  If  deacons  were  admitted  into  the 
Assembly,  this  would  be  a  violation  of  the  trust:  the  Legislature  provi- 
ded for  ministers  and  elders  only.  And  not  even  for  all  ministers  and 
elders,  but  for  those  only  of  the  Presbyterian  Church.  If,  therefore,  any 
congregation  not  belonging  to  the  Presbyterian  Church,  should  choose  to 
designate  its  officers  as  pastor  and  elders,  these  could  not  be  admitted  to 
partake  of  the  benefits  of  the  franchise.  The  act  of  admitting  them 
would  be  wrong  in  itself,  in  derogation  of  the  charter  of  incorporation. 
And  after  all,  the  act  of  ISOl  was  but  an  act  of  the  Assembly,  and  by 
the  Assembly  it  might  be  repealed.  And  whenever  it  was  repealed,  the 
establishment  reared  upon  it  fell  to  the  ground. 

I  say  that  the  Assembly  had  a  right  to  repeal  the  "  Plan  of  Union," 
because  it  was  an  act  of  the  Assembly.  Such  a  power  is  absolutely  ne- 
cessary, whether  you  consider  it  as  legislative  power,  or  as  an  incident  to 
the  power  of  making  treaties.  If  you  consider  it  merely  a  legislative 
act,  then  the  power  to  repeal  it  must  be  acknowledged.  If  it  was  a  trea- 
ty, then  the  Assembly  has  the  highest  power  which  you  could  give — it 
can  do  that  which  none  but  a  supreme  power  is  allowed  to  do. 

The  only  point  of  view  in  which  the  "  Plan  of  Union"  can  appear  of 
doubtful  unconstitutionality,  is  its  being  established  for  temporary  pur- 
poses— that  it  was  never  intended  to  operate,  except  in  the  wild  settle- 
ments, nor  to  admit  persons,  other  than  Presbyterians,  to  exert  an  influ- 
ence in  the  judicatories  of  the  Church.  If  intended  to  be  permanent, 
and  to  interfere  in  the  Presbyterian  organization,  it  was  unconstitutional; 
and  if  a  wrong  construction  of  the  act  had  produced  such  an  interference, 
this  was  a  perversion  which  the  Assembly  had  a  right  to  rectify.  My 
proposition  is,  that  the  act  so  construed  is  contrary  to  the  fundamental 
principles  of  the  Presbyterian  Church,  and  contrary  to  the  provision  of 
the  act  of  incorporation;  that  it  has  admitted  improper  persons  into  that 
Church.  And  if  this  be  the  case,  the  Assembly  had  a  right  to  repeal  the 
•■'Plan;"  and  the  consequence  of  this  repeal  was,  that  every  thing  built 
upon  the  "  Plan,"  or  depending  from  it,  fell  to  the  ground,  unless  certain 
rights  had  accrued  therefrom,  the  instrument  being  in  the  nature  of  a 
contract,  a  quid  pro  quo  having  passed  between  the  parties,  the  rights,  in 
short,  being  of  the  nature  of  vested  rights.  Let  us  look  at  this  for  a 
moment. 

In  the  first  place,  the  act  did  not  authorize  that  of  which  we  complain, 
though  we  undertake  to  show,  that  by  virtue  of  that  act  the  Synods  were 
established,  and  the  rights  of  the  parties,  whatever  they  were,  accrued. 
But  is  there  any  thing  in  the  form  of  the  "  Plan  of  Union"  at  all  like  a 
contract  between  two  parties,  from  which  vested  rights  could  spring? 
Here  is  no  compact  between  the  General  Assembly  and  the  disowned  Sy- 
nods and  Presbyteries.  The  former  is  an  appellate  tribunal  from  the 
latter,  but  each  depends  on  its  own  fundamental  law,  and  though  all 
are  bound  together  by  strong  links,  there  is  nothing  like  a  contract  or 
obligation  between  them.  Your  Honour  sitting  in  this  court  has  entered 
into  no  contract  with  any  of  the  inferior  courts:  they  are  independent  of 


MR.  PRESTON'S  ARGUMENT. 


333 


this  in  their  organization,  though  dependent  as  regards  appeals.  These 
courts  and  those  Synods  have  no  rights  vested:  they  are  independent  of 
this  tribunal,  and  of  the  General  Assembly,  excepting  as  the  latter  are  an 
appellate  court.  There  has  been  nothing  like  a  contract.  But  the  in- 
troduction of  these  men  was  a  fraud,  and  we  say,  "Gentlemen,  you  were 
admitted  by  mistake — if  you  please,  a  mutual  mistake; — but  you  shall 
not  on  that  account  lose  your  standing.  You  must,  however,  be  re- 
organized; your  title  must  be  recorded  afresh."  We  had,  incontestibly, 
the  power  to  repeal  the  "Plan  of  Union,"  and  the  four  Synods  fell  with 
the  repeal. — When  that  which  had  supported  them  was  stricken  down, 
"they  sank  with  it  to  the  ground,  and  were  broken  in  pieces;  but  the  scat- 
tered fragments  may  yet  be  collected,  and  re-organized. 

Again,  the  General  Assembly,  independently  of  its  unquestionable 
power  over  the  "Plan  of  Union,"  had  a  right  to  dissolve  any  Synod 
and  any  Presbytery.  And  no  reasons  need  be  given  for  the  exercise  of 
this  power.  If  we  once  establish  the  jurisdiction,  it  were  a  work  of  su- 
pererogation to  investigate  reasons  and  motives.  This  is  an  essential 
power,  and  the  Assembly  may  apply  it  for  their  own  private  reasons 
without  being  responsible  for  its  proper  exercise.  In  the  course  of  the 
argument  on  the  other  side,  it  has  been  contended  that  the  General  As- 
sembly has  no  power  except  that  of  trying  appeals;  that  it  is  not  a  legis- 
lative body,  but  merely  a  judicial  one.  I  say,  that  it  is  like  the  United 
States  Senate,  and  combines  judicial,  legislative,  and  executive  functions. 
It  has  been  supposed  that  such  powers  can  never  wisely  be  made  to  co- 
exist, but  I'll  show  conclusively  that  they  co-exist  here. 

The  Assembly  is  a  constitutional  body,  but  neither  it,  nor  the  Pres- 
byteries, nor  the  Synods,  have  power  to  alter  the  Constitution  of  the 
Church.  The  Assembly,  however,  suggests  all  changes  in  that  Constitu- 
tion, and  submits  them  to  the  Presbyteries,  which  pass  upon  them.  This 
is  clearly  a  legislative  act,  and  shows  that  it  is  not  a  mere  judicatory  or 
judicial  body.  A  judicatory,  in  the  strict'  sense  of  the  word,  is  only 
a  court  of  justice,  like  this  in  which  your  Honour  presides.  But  the 
Assembly  may  propose  amendments  to  the  Constitution,  passing  upon 
them  in  the  first  instance,  and  then  sending  ihem  to  the  Presbyteries  for 
their  concurrence,  the  latter  not  being  able  to  make  amendments  unless 
they  are  first  submitted  by  the  Assembly,  so  that  they  exercise  a  sort  of 
co-ordinate  legislative  power  only.  The  power  thus  vested  in  the  As- 
sembly depends  on  the  fundamental  laws  of  Presbyterianism — I  will  not 
say  on  the  Bible,  for  this,  in  regard  to  a  multitude  of  even  ecclesiastical 
affairs,  is  silent.  The  authority  to  propose  constitutional  rules  to  the 
Presbyteries  is  like  that  of  Congress  to  alter  the  Constitution  of  the  Uni- 
ted States,  with  the  concurrence  of  three-fourths  of  the  several  Slates. 
Indeed  the  Presbyterian  Church  is  constituted  in  strange  conformity 
with  our  own  Government.  It  is  a  very  curious  coincidence,  that,  hav- 
ing grown  up  subsequently,  and  purporting  to  be  of  divine  ordination,  it 
should  bear  such  a  close  resemblance,  in  many  particulars,  to  the  political 
institutions  of  this  country;  and  this  perhaps  is  an  earnest  of  the  perpe- 
tuity of  our  beloved  Union.  We  fondly  regard  the  latter  as  the  purest 
specimen  of  a  republican  government  which  the  world  has  ever  seen,  and 
on  the  same  true  basis  of  republicanism  we  find  established  this  republi- 
can Church.     I  may  suppose  that  the  two  are  constructed  after  the  same 


334  PRESBYTERIAN  CHURCH  CASE. 

model.  And  although  a  crisis  in  the  affairs  of  both  Church  and  State 
seem  now  to  have  arrived,  we  may  confidently  hope  that  both  of  these 
noble  institutions  will  pass  unharmed  through  the  trial;  that  both,  though 
for  a  time  depressed,  will  revive  and  spread  themselves  through  all  future 
ages.  This  is  not  the  first  time  that  schismatic  contentions  have  dis- 
tracted our  Church:  before  this  the  bush  has  been  on  fire,  though  never 
consumed.  It  will  yet  arise  in  renovated  strength,  and  go  forth  conquer- 
ing and  to  conquer  down  to  the  latest  times.  It  has  in  itself  a  recupera- 
tive power:  it  can  never  become  extinct:  with  the  government  of  our 
own  land  it  will  descend  to  remote  posterity.  I  do  not  mean  that  the 
Presbyterian  Church  will  absorb  and  swallow  up  all  others,  nor  do  I 
wish  that  it  should  be  so.  Sectarianism  purifies  the  Church,  as  parties 
purify  the  political  atmosphere;  and  I  hope  that  each  denomination  will 
always  be  secure  in  its  own  privileges.  I  claim  for  all  forms  of  religion 
the  same  civil  rights  and  immunities — for  the  Catholic,  the  Episcopalian, 
the  Jew,  and  the  Mohammedan.  Let  each  pursue  its  own  appointed 
course,  without  harm  or  interference  from  the  civil  power. 

Now  let  us  inquire  what  are  the  constitutional  powers  of  the  General 
Assembly:  whether  it  has  not  the  power  of  passing  laws.  It  is  a  curious 
fact,  that  though  all  the  courts  of  the  Church  are  called  judicatories,  yet 
their  rules  prescribe  a  particular  form  to  be  observed,  whenever  any  one 
of  them  '' w  about  to  sit  in  a  judicial  capacity  ;^^  just  as  a  particular 
form  is  observed  in  the  Senate  of  the  United  States  when  that  body 
drops  for  a  time  its  legislative  functions  to  sit  as  a  court  of  justice. — 
Append,  to  Const.  R.  39. 

"  Whenever  a  judicatory  is  about  to  sit  in  a  judicial  capacity,  it  shall 
be  the  duty  of  the  Moderator,  solemnly  to  announce  from  the  chair,  that 
the  body  is  about  to  pass  to  the  consideration  of  the  business  assigned  for 
trial,  and  to  enjoin  on  the  members  to  recollect  and  regard  the  high  cha- 
racter, as  judges  of  a  court  of  Jesus  Christ,  and  the  solemn  duty,  in  which 
they  are  about  to  act." 

What  power  could  be  given  in  ampler  terms  than  that  confided  to  the 
General  Assembly?  In  the  construction  of  powers  granted  by  a  constitu- 
tion, some  general  principles  are  to  be  remembered.  There  is  a  difference 
between  a  limited  government  with  delegated  powers,  and  a  government 
limited  in  its  powers.  If  a  power  is  claimed  for  the  government  of  the 
United  States,  you  must  point  out  a  grant  thereof  in  the  Constitution — a 
grant  either  express  or  by  necessary  implication.  Our  government  is  one 
of  specific,  delegated  powers.  On  the  other  hand,  the  several  state  gov- 
ernments are  just  the  reverse  of  this:  their  powers  are  limited  only  by 
negation.  Unless  you  can  show  a  certain  power  to  have  been  denied  to 
any  one  of  them,  it  must  exist.  In  the  one  case  it  is  a  gift,  in  the  other 
case  an  original  power,  merely  not  restricted.  In  the  former  it  depends 
on  your  being  able  to  show  it  in  the  instrument,  in  the  latter  upon  the 
fact  that  no  negation  of  it  can  be  shown.  The  legislatures  of  the  several 
states  of  the  IJnion  have  all  powers  excepting  those  expressly  taken 
away.  If  the  government  of  the  Presbyterian  Church  is  like  either  of 
those  which  I  have  described,  it  is  very  easy  to  determine  whether  the 
General  Assembly  has  the  power  which  it  exercised  in  1837.  If  it  is  a 
body  of  delegated  powers,  we  must  show  the  grant  of  this  particular  one; 
if  of  restricted  powers,  we  must  show  the  restriction  in  this  case.     It 


MR.  PRESTON'S  ARGUMENT. 


335 


happens,  however,  that  the  Constitution  of  our  Church  can  be  judged  by 
neither  of  these  rules.  It  contains  a  grant  of  general  powers,  in  very- 
general  terms,  and  on  this  account  is  most  nearly  assimilated  to  the  con- 
stitutions of  the  several  States.  To  illustrate  this  point:  the  Constitution 
of  the  United  States  provides  that  the  general  government  shall  have 
such  and  such  powers;  but  to  the  General  Assembly  are  first  given  all 
powers,  legislative  and  executive,  as  well  as  judicial,  and  then  certain 
restrictions  are  put  upon  those  powers.  Is  there  any  similarity  between 
the  two? 

,  "The  General  Assembly  is  the  highest  judicatory  of  the  Presbyterian 
Church.  It  shall  represent  in  one  body,  all  the  particular  churches  of 
this  denomination;  and  shall  bear  the  title  of  The  General  Assembly 
OF  THE  Presbyterian  Church  in  the  United  States  of  America." 
Form  of  Gov.  Chap.  xii.  Sect.  I. 

What  does  it  thus  represent?  The  powers  of  "  all  the  particular 
churches."  Whatever  power  they  have  is  represented  in  this  body.  That 
authority  which  each  church  exercises  within  its  own  limits,  the  Assem- 
bly has,  by  delegation,  over  all  the  churches.  This  clause  gives  a  general, 
sweeping  delegation  of  the  whole  power  of  the  Presbyterian  Church, 
whether  this  be  judicial,  legislative,  or  of  any  other  description.  It  is 
circumscribed  only  by  the  Holy  Scriptures,  or  by  the  restrictions  which 
are  placed  alike  upon  all  the  other  judicatories.  These  are  the  only  lim- 
itations. The  power  that  belongs  to  the  whole  Church  is  carried  up  and 
attributed  to  the  General  Assembly  in  the  boldest  and  broadest  terms. 
Here  there  is  a  delegation  of  power,  of  all  the  power,  possessed  by  those 
who  formed  the  Constitution,  and  the  grant  is  broader  than  that  made  to 
any  one  of  our  legislatures.  If  the  people  of  this  state  were  to  grant  all 
their  power  to  the  government,  then  only  would  its  authority  be  com- 
mensurate with  that  of  the  General  Assembly.  And,  unquestionably,  it 
was  the  intention  of  the  people  of  the  Presbyterian  Church  to  give  to  the 
Assembly  that  power  throughout  all  its  bounds,  which  Synods,  Presby- 
teries, and  church-sessions  exercise  within  smaller  limits. 

"  The  General  Assembly  shall  receive  and  issue  all  appeals  and  refer- 
ences, which  may  be  regularly  brought  before  them,  from  the  inferior 
judicatories.  They  shall  review  the  records  of  every  synod,  and  approve 
or  censure  them:  they  shall  give  their  advice  and  instruction  in  all  cases 
submitted  to  them,  in  conformity  with  the  constitution  of  the  church; 
and  they  shall  constitute  the  bond  of  union,  peace,  cori-espondence  and 
mutual  confidence,  among  all  our  churches."     Id.  Sect.  4. 

Now,  if  all  the  power  of  the  Church  was  vested  in  the  Assembly  in 
the  first  instance,  by  the  great  latitude  of  the  terms  employed,  nothing 
farther  was  necessary,  since,  wherever  a  power  is  given,  the  right  to  car- 
ry it  into  effect,  whether  by  legislative  or  any  other  means,  is  necessarily 
implied.  Here  is  expressly  mentioned  a  power  to  *<  review  the  records 
of  every  synod,  and  approve  or  censure  them."  These  records,  then, 
may  be  taken  and  examined,  whether  the  Synod  sends  them  or  not:  such 
a  power  is  necessary  to  the  exercise  of  that  expressly  granted:  without  it 
the  words  last  read  would  be  barren  and  inoperative.  "They  shall  give 
their  advice  and  instruction  in  all  cases  submitted  to  them,  in  conformity 
with  the  constitution  of  the  church."  And  what  if  those  whom  they 
advise  and   instruct,  should  choose  to  disobey?     Has  the  Assembly  no 


336  PRESBYTERIAN  CHURCH  CASE. 

power  to  carry  into  effect  its  injunctions?  Are  its  instructions  merely 
hortatory?  Then  you  have  a  government  incapable  of  giving  any  sanc- 
tion to  its  deci-ees.  "  Theyshall  constitute  the  bond  of  union,  peace, 
correspondence,  and  mutual  confidence  among  all  our  churches."  Sup- 
pose that  the  bond  of  peace  and  correspondence  be  broken,  how  are  they 
to  restore  its  strength.  The  power  to  preserve  the  peace  of  the  Church 
is  given;  and  has  the  Assembly  no  power  when  a  member  of  that 
Church  is  recusant  to  force  him  into  submission? 

"  To  the  General  Assembly  also  belongs  the  power  of  deciding  in  all 
controversies  respecting  doctrine  and  discipline." — By  this  body,  in  the 
last  resort,  such  controversies  are  to  be  determined.  If  they  affect  Pres- 
byteries or  Synods,  the  Assembly  is  the  ultimate  tribunal,  and  must  set- 
tle all  disputes  finally  and  conclusively.  The  power,  as  regards  doctrine, 
is  too  broad  for  the  present  case,  but  as  it  regards  discipline  is  more  ger- 
man  to  our  purpose.  What?  Is  it  said  that  the  authority  is  applicable  to 
controversies  between  individuals  only,  and  cannot  be  exercised  when 
Presbyteries  and  Synods  are  concerned?  Why  the  great,  the  most  im- 
portant object  of  discipline  is  the  regulation  of  these  inferior  bodies;  and 
yet  it  is  contended  that  the  Assembly  cannot  enforce  discipline  in  regard 
to  them.  "  Of  reproving,  warning,  or  bearing  testimony  against  error  in 
doctrine,  or  immorality  in  practice" — in  the  case  of  individuals — in 
personam^  not  in  rem? — "in  any  Church,  Presbytery,  or  Synod." — 
Then  here  is  an  express  power  to  regulate  doctrine  and  discipline  in 
Presbyteries  and  Synods;  and  how  is  the  power  to  be  applied,  but  by 
such  censures  and  remonstrances  as  may  seem  proper,  and  when  these  are 
disregarded,  by  a  higher  exercise  of  authority — the  dissolution  of  the 
offending  bodies,  and  their  re-organization  in  conformity  with  the  dis- 
cipline of  the  Church. — "  Of  erecting  new  synods,  when  it  may  be 
judged  necessary;  of  superintending  the  concerns  of  the  whole  church; 
of  corresponding  with  foreign  churches,  on  such  terms  as  may  be  agreed 
upon  by  the  Assembly  and  the  corresponding  body;  of  suppressing 
schismatical  contentions  and  disputations;  and,  in  general  of  recommend- 
ing and  attempting  reformation  of  manners,  and  the  promotion  of  chari- 
ty, truth,  and  holiness,  through  all  the  churches  under  their  care." 

General  powers  were  before  granted,  and  here  we  have  a  specification 
of  a  few  of  these  powers,  which  are  themselves  sufficient  for  our  purpose. 
As  to  the  mode  of  proceeding  to  carry  them  into  effect,  the  Assembly  is 
to  exercise  its  own  judgment.  No  form  is  prescribed.  In  virtue,  too, 
of  the  power  to  erect  Synods,  the  Assembly  may  dissolve,  re-arrange,  and 
re-model  them:  I  believe  this  is  not  disputed.  If  they  have  the  jurisdic- 
tion which  I  have  mentioned,  they  may  exercise  it  according  to  their  own 
discretion,  even  according  to  their  caprice.  Your  Honour  will  not  per- 
mit any  question  to  be  raised  here  in  regard  to  the  manner  in  which 
an  acknowledged  power  has  been  exercised. 

Now  having  shown  tlie  necessary  powers  to  be  vested  in  the  Assembly, 
by  a  broad  and  general  grant,  I  assert  that  they  have  been  always  used 
by  that  body;  that  they  have  continually  engaged  in  acts  of  legislation, 
in  regard  to  a  variety  of  subjects.  A  Committee  of  Overtures  is  appoint- 
ed at  the  commencement  of  each  session;  and  the  appointment  of  that 
committee  proves  the  exercise  of  other  functions  than  those  merely  judi- 
cial and  executive. 


MR.  PRESTON'S  ARGUMENT.  337 

May  it  please  your  Honour,  I  have  contented  myself  with  a  very  cur- 
sory examination  of  these  last  topics,  partly  because  I  had  before  occupied 
so  much  time,  and  partly  because,  as  I  conceive,  they  have  no  relevancy 
to  this  case.  More  will  be  said  in  regard  to  them  by  the  able  and  learned 
counsel,  who  is  to  succeed  me:  he  will  supply  all  the  defects  of  my  argu- 
ment. And  I  hope,  gentlemen,  that  on  the  view  of  what  has  already  been, 
or  may  be  hereafter  advanced,  you  will  find  that  the  relators  here  have  not 
established  the  claim  of  those  whom  they  represent,  to  be,  exclusively, 
the  Presbyterian  Church.  I  do  not  think  that  the  Assembly  of  1837  did 
wrong;  but  if  it  did,  it  was  only  to  the  four  exscinded  Synods,  and  but 
one  half  of  these  gentlemen  who  assert  that  they  formed  the  constitu- 
tional Assembly,  are  from  those  Synods.  The  rights  of  the  fifty-four 
commissioners  excluded,  are  the  only  ones  which  the  relators  seek  to 
establish  by  this  most  extraordinary  proceeding.  They  say  that  we  acted 
unjustly;  but  is  this  the  only  way  of  obtaining  redress?  Must  they  anni- 
hilate us  to  reinstate  themselves.  Suppose  that  our  proceeding  in  1837 
were  unjust  and  most  tyrannical,  why  did  they  not  return  and  ask  leave 
to  take  their  seats  among  us?  Why  did  they  not  demand  them,  in  the 
usual  and  prescribed  form,  from  the  Assembly  of  1838,  coming  fresh  from 
the  people,  and  thus  give  us  a  chance  of  reviewing  the  conduct  of  the 
preceding  Assembly,  and  coolly  deciding  whether  it  had  been  right  or 
wrong?  Or,  if  they  did  not  choose  thus  to  appeal  to  us,  why  did  they 
not  appeal  to  the  laws  of  the  land  for  the  same  purpose?  Why  do  they 
seek  to  annihilate  us — to  obliterate  our  name?  Must  they  sit  in  our  seats 
and  lord  it  over  us,  and  exercise  an  unlimited,  uncontrolled  power  in  the 
dispensation  of  the  charities  of  the  Church?  Why,  I  ask,  did  they  not 
return,  and  make  a  formal  application  to  the  new  body  sent  back  in  1838, 
after  the  whole  subject  of  their  alleged  grievances  had  been  submitted  to 
the  people?  Such  an  appeal  to  us  was  never  made.  Or,  if  they  con- 
sidered the  Assembly  of  1838  likely  to  prove  unjust,  why  did  they  not 
apply  to  the  civil  power  to  restore  them  to  their  seats?  Why  did  they 
not  proceed  hy  di  mandamus  ?  No,  this  was  not  enough.  They  were 
not  content  to  recover  merely  what  they  alleged  had  been  unjustly  taken 
from  them.  Their  motto  is,  ^ut  Cassar,  aut  nullus.  They  do  not  de- 
sire merely  their  old  places;  now  they  must  be  all  or  nothing.  They 
wish  to  seize  upon  the  whole  funds  of  the  Church,  and  to  propose  terms 
to  us — the  minority  to  the  majority.  They  must  subdue  and  humble  us: 
we  must  come  as  suppliants  for  their  bounty.  Were  they  unwilling  to 
abide  the  trifling  delay  which  a  formal  application  to  the  Assembly  of 
1838  would  have  required  ?  This  delay  might  have  been  a  misfortune; 
but,  gentlemen,  delays  of  justice  are  frequently  the  price  which  we  are 
obliged  to  pay  for  our  liberties.  This,  besides,  is  no  excuse,  because  a 
civil  court  would  have  put  them  in  statu  quo,  if  they  could  have  estab- 
lished their  claim.  If  they  did  not  want  money,  if  they  did  not  desire 
to  strike  down  men  obnoxious  to  them,  and  to  seize  upon  the  funds,  there 
was  another  method  in  which  they  might  have  tried  the  right.  I  do  not 
pretend  to  advise  them,  but  merely  to  show  that  there  was  no  necessity 
for  such  extraordinary  proceedings  as  these.  Their  Permanent  Clerk 
might  have  brought  an  action  against  ours  to  recover  the  books  and  pa- 
pers. If  an  action  of  trover  had  been  instituted  by  the  clerk,  in  that 
way  the  question  might  have  been  peacefully  brought  up.     Thus  it  might 

43 


338  PRESBYTERIAN  CHURCH  CASE. 

have  been  decided  whether  they  were  a  part,  or,  if  they  please,  the  whole 
of  the  Presbyterian  Church.  This  question  would  have  been  involved 
in  an  action  of  trover,  and  the  institution  of  such  a  suit  would  have  shown 
that  they  were  not  disposed  to  strike  down  that  venerable  gentleman, 
(Dr.  Green,)  or  to  seize  upon  the  purse.  But  instead  of  this,  they  attack 
directly  our  persons  and  our  funds. 

Well,  gentlemen,  it  is  for  you  to  decide,  whether  they  are  the  Presby- 
terian Assembly,  and  we  no  part  or  parcel  of  it.  On  your  verdict  the 
claims  of  each  party  depend:  by  it  these  questions  must  be  solved.  If 
you  decide  that  we  are  not  the  Presbyterian  Church,  here  is  our  money: 
take  it  from  us,  for  it  is  but  dross.  We  shall  lament,  but  shall  not  be  ut- 
terly stricken  down.  In  the  bosoms  of  the  fathers  of  the  Church  there 
swells  a  Christian  spirit  that  will  yet  sustain  them.  As  of  old  they  have 
rallied  around  the  standards  of  their  faith,  sn  impenetrable  array,  so,  with 
the  noble  company  of  young  men  who  will  feel  honoured  to  perish  at 
their  sides,  will  they  again  rally,  thougli  a  broken  band.  Those  who 
have  planted  the  Church;  whose  prayers  have  prevailed  with  heaven  for 
a  rich  blessing  on  their  labours;  though  that  which  their  hearts  have  so 
fondly  cherished  be  taken  from  them  by  the  finesse,  the  legal  artifices 
and  intendments  of  their  adversaries,  will  still  find  comfort  in  the  midst 
of  the  sore  affliction. 

But  I  will  not  anticipate  such  a  result:  I  look  confidently  to  your  ver- 
dict's being  given  for  us,  and  I  will  tell  you  the  consequences  of  that 
verdict.  The  Old-school  party,  now  sustained  by  the  bright  example 
and  Christian  precepts  of  those  who  have  gone  before  them,  will  be 
strengthened  by  your  judgment.  And  soon  tlie  wild,  prodigal  son,  that 
has  gone  forth  to  seek  elsewhere  his  fortune,  impoverished  by  your  ver- 
dict, will  return  to  the  home  of  his  father;  we  will  kill  for  him  the  fat- 
ted calf;  we  will  spread  the  banquet  of  peace  and  unity  restored,  and  of 
never-ceasing  love.  If  this  result  does,  as  I  confidently  hope  and  expect, 
follow  from  your  verdict,  all  difficulty  will  be  removed;  the  true  flock 
will  again  be  collected  within  its  venerable  fold;  you  will  see  perfect 
harmony  reigning  as  before  between  Congregationalists  and  Presbyte- 
rians. Such  a  verdict,  while  it  might  be  received  with  dismay  by  a 
small  portion  of  the  people  of  this  land,  would  call  forth  from  your  own 
State  an  universal  acclamation  of  joy  and  thanksgiving.  From  the 
shores  of  the  Atlantic  to  the  banks  of  the  Mississippi,  would  rise  one 
loud  and  general  burst  of  gladness,  mingled  with  prayers  of  grateful 
adoration  to  Almighty  God. 

I  have  now  discharged,  as  well  as  I  have  been  able,  the  duties  of  a  re- 
sponsible situation.  I  have  perhaps  trespassed  too  long  upon  your  pa- 
tience, but  I  have  been  urged  on  by  the  conviction,  that  I  was  called  to 
devote  to  the  subject  my  whole  strength  of  both  mind  and  body;  and  I 
humbly  ask  your  pardon  for  having  so  long  detained  you.  Gentlemen 
of  the  jur}^  I  thank  you  for  your  attention.  And  may  it  please  your 
Honour,  I  have  perhaps  marred  the  symmetry  of  the  case,  but  I  must 
thank  the  Court  for  the  kind  permission  of  appearing  as  an  advocate  for 
the  defendants,  which  has  been  extended  to  a  stranger,  and  for  the  cour- 
tesy to  which  I  should  not  otherwise  have  been  entitled. 


339 


MR.  INGERSOLL'S  ARGUMENT. 


THURSDAY  MORNING,  March  21st— 10  o'clock. 

With  suhinission  to  your  Honour — Gentlemen  of  the  Jury — Per- 
haps I  cannot  belter  break  the  formality  of  an  opening  to  a  mere  business 
argument,  th^n  by  making  a  very  inadequate  acknowledgement  to  the 
learned  counsel  who  has  preceded  me.  All  who  have  heard  him  must 
feel  themselves  to  be  his  debtors.  His  clients  cannot  fail  to  be  grateful 
for  the  ability  with  which  he  has  argued  their  cause.  The  court  and  the 
jury  must  be  conscious,  that  their  labours  will  be  lightened  by  the 
learning  and  talents  which  he  has  brought  in  aid  of  their  investigations. 
Even  his  antagonists  will  confess,  that  while  they  have  occasionally  suf- 
fered from  the  power  of  his  argument,  they  have  enjoyed  the  graces  and 
the  vigour  of  his  eloquence.  If  they  have  smarted  from  the  severity  of 
his  blows,  they  have  admired  the  brilliancy  of  his  weapons,  and  the  dex- 
terity with  which  they  have  been  used.  No  one,  perhaps,  owes  him  so 
small  a  measure  of  gratitude  as  myself;  for  he  has  left  me  the  duty  of 
addressing  you,  with  scarcely  the  privilege  of  having  any  thing  to  say. 
While  he  has  reaped  the  harvest  with  an  avaricious  hand,  he  has  com- 
mitted to  me  the  humble  and  unprofitable  task  of  gathering  only  the 
scattered  and  imperfect  gleanings  of  the  field.  But  I  should  do  injustice 
to  my  own  feelings,  and  to  the  bar,  of  which  we  are  for  the  occasion 
fellow  members,  if  I  did  not  unite  in  offering  him  my  cordial  acknowl- 
edgments for  the  example  he  has  afforded  to  us  all.  Not  so  much  for 
an  example  of  abilities,  learning,  and  eloquence — these  are  qualities 
which  we  might  vainly  endeavour  to  emulate — but  through  the  whole 
course  of  an  arduous  and  protracted  controversy,  he  has  manifested  a  dis- 
tinguished courtesy;  a  fair,  honourable,  and  urbane  deportment;  the  due 
appreciation  and  imitation  of  which  will,  at  all  times,  contribute  to  the 
delightful,  and  as  I  firmly  believe,  to  the  true  administration  of  justice. 

It  is  important  in  the  outset  to  exhibit  the  essential  differences  between 
the  parties  to  the  cause.  Not  the  mere  abstract  differences,  the  mutual 
claims  of  right,  and  imputations  of  wrong,  which  exist  in  every  contro- 
versy. Much  less  the  subtle  and  inscrutable  varieties  arising  from  the 
alleged  preponderance  in  purity  of  motive.  Each  side  might  there  safely 
challenge  investigation,  in  the  consciousness  that  no  human  tribunal  is 
competent  to  the  decision.  But  the  visible  and  acknowledged  points  of 
difference,  radiating,  as  it  were,  from  the  pleadings  and  the  evidence 
which  the  parties  have  chosen  to  put  forth  and  to  fight  under,  as  the  sign 
and  the  standard  of  its  cause.  Engaged  as  we  are  in  the  active  struggles 
of  a  divided  and  militant  Church,  we  naturally  seek  for  the  respective 
manifestos  which  went  out  before  the  present  state  of  hostile  conflict 
began.  They  are  not  difficult  of  discovery,  and  to  them  we  may  advanta- 
geously apply  all  that  has  since  been  said  or  done  by  the  respective  hosts. 

The  plaintiffs  are  bound  to  show  who  are  the  present  Trustees  of  the 


340  PRESBYTERIAN  CHURCH  CASE. 

General  Assembly  of  the  Presbyterian  Church.  They  are  bound  to  show 
that  they  are  themselves  entitled  to  that  office  against  all  competitors. 
But  there  are  certain  preliminary  or  constituent  principles,  the  resolution 
of  which  will  resolve  the  final  inquiries.  These  are  found  in  two  posi- 
tions, connected  with  the  two  principal  events,  which  stand  forth  as  the 
prominent  circumstances  in  the  history  of  the  controversy.  These  posi- 
tions the  plaintiffs  must  assume  and  maintain.  Reducing  them  to  the 
fewest  possible  words,  they  are, 

1.  That  the  proceedings  of  the  General  Assembly  of  1837,  declaring 
four  Synods  to  be  out  of  the  ecclesiastical  connection  of  the  Presbyterian 
Church,  are  null  and  void. 

2.  That  on  the  17th  of  May,  1838,  a  lawful  change  was  affected  in  an 
existing  General  Assembly,  and  that  a  new  one  was  substituted  for  it, 
which  carried  away  the  entire  powers  of  the  original  body,  and  exercised 
them  fully  in  another  place. 

The  defendants  deny  both  of  these  positions.  They  maintain  that  the 
proceedings  of  1837  were  valid  and  effectual.  They  assert,  however, 
that  even  if  they  are  wrong  in  this  denial,  their  antagonists  are  as  remote 
as  ever  from  the  object  of  their  seeking,  since  they  must  not  only  demon- 
strate the  invalidity  of  our  proceedings,  but  the  propriety  of  their  own. 
They  must  create  as  well  as  destroy.  If  the  transactions  of  1837,  which 
we  undertake  to  sustain,  are  impugned  effectually,  those  of  1838,  which 
our  antagonists  must  justify,  are  still  defective  and  fruitless;  for  these 
last  transactions  made  no  effective  change  in  the  existence  or  powers  of 
the  duly  organized  body,  but  amounted  only  to  a  voluntary  secession,  and 
a  distinct,  independent,  coexistent,  and  therefore  abortive  organization. 

It  will  be  readily  perceived  that  the  labour  of  proof  is,  throughout, 
assumed  by  the  plaintiffs.  It  is  incumbent  on  them  to  establish  each  of 
the  propositions  which  have  been  stated.  It  is  not  perhaps  very  material 
to  add,  that  in  doing  so,  they  have  to  make  out,  not  only  an  affirmative 
but  one  of  a  compound  character,  inasmuch  as  each  of  their  points  is  com- 
posed of  a  series  of  distinct  yet  dependent  positions,  no  one  of  which  can 
be  made  available  unless  it  can  both  give  support  to  the  rest,  and  derive 
it  from  them. 

1  propose  to  consider,  first,  the  proceedings  of  1837.  They  are  the  ear- 
liest in  date,  and  naturally  precede  in  the  course  of  discussion,  those  of  a 
later  period;  and  they  are  an  indispensable  foundation  for  the  other  parts 
of  the  plaintiffs'  cause. 

Look  for  a  moment  at  the  character  of  the  General  Assembly,  its 
powers,  and  the  nature  of  its  proceedings.  It  was  a  competent  and  con- 
stitutional body,  distinguished  for  wisdom  and  piety,  containing  some  of 
the  most  virtuous  and  intelligent  men  of  their  order,  made  up  of  dele- 
gates, sufficient  in  point  of  number,  and  amply  invested  with  authority, 
fully  instructed  as  to  the  desires  and  interests  of  their  constituents,  and 
able  to  maintain  their  rights  and  vindicate  their  wrongs.  It  was  entitled 
to  especial  confidence.  In  matters  of  this  sort  it  is  the  very  kind  of  tri- 
bunal that  ought  to  be  supreme.  Where  else  can  religious  men  look  for 
authority  and  wisdom  in  religious  matters,  if  not  to  the  collected  intelli- 
gence of  the  wise  and  pious  of  their  especial  sect?  Every  Christian  Church 
has,  what  may  be  termed,  its  hierarchy:  a  system  of  ecclesiastical  polity, 
which  is  necessary  for  its  well  being.     In  all  ages  of  Christianity,  the 


MR.  INGERSOLL'S  ARGUMENT. 


341 


highest  council  has  been  in  its  influence  supreme;  and  it  has  been  looked 
to  as  the  safest  guide  and  the  best  instructor.  If  there  be  infallibility  any- 
where, the  Roman  Catholic  believes  it  to  rest  in  general  councils.  Luther 
the  great  reformer,  the  founder  of  Protestantism,  appealed  to  them  with 
unhesitating  confidence.  Even  Calvin,  the  apostle  of  Presbyterianism, 
maintained  that  the  universal  Church  is  infallible,  and  that  God  must  annul 
his  solemn  promises  if  it  were  otherwise.  Whether  attained  with  the 
gorgeous  splendour  of  one  class  of  Christians,  or  the  studied  simplicity  of 
another,  the  effect  is  the  same.  None  are  bound  by  the  decrees  of  these 
religious  assemblies,  but  those  by  whom  they  are  sought;  but  upon  those 
who  seek  them,  their  influence  is  greater  even  than  that  of  temporal 
courts  of  justice,  for  they  affect  not  only  the  conduct  but  the  conscience 
Xilso.  ,  This  kind  of  jurisdiction,  however  powerful  in  its  peculiar  sphere, 
implies  no  disrespect  towards  the  laws  of  the  land,  or  the  tribunals  that 
administer  them,  and  occasions  not  the  slightest  interference  with  them. 
Individuals  may  by  mutual  consent  submit  their  controversies  to  other 
individuals  not  more  competent  to  judge  wisely  than  themselves.  Yet 
the  judgments  of  the  humblest  tribunal,  owing  its  existence  merely  to 
voluntary  selection  and  submission,  dignified  by  no  judicial  title,  strength- 
ened by  no  commission,  clothed  with  no  ofiicial  power,  possess  a  stability 
as  complete  as  those  of  the  ermined  judge,  who  is  surrounded  with  the 
implements  and  the  insignia  of  office.  All  this  is  because  the  unofficial 
tribunal  has  been  voluntarily  selected  by  the  parties.  Can  the  effect  be 
less  ceitain  when  the  umpire  is  of  a  more  dignified  and  exalted  character? 
Is  the  decision  of  a  church  council,  so  well  chosen,  so  full  of  piety,  so 
sound  in  judgment,  so  tried  in  experience,  less  entitled  to  respect  than 
that  of  the  commonest  reference? 

It  is  among  a  particular  class  of  persons  only  that  the  determinations 
of  an  ecclesiastical  body  can  be  expected  to  be  effectual.  All  the  parties 
to  this  cause  are,  I  presume,  of  that  character.  They  are  religious  men, 
otherwise  the  decisions  referred  to  would  have  no  sanction.  Talk  to  the 
profligate  and  the  infidel  of  the  judgments  of  the  Church.,  and  he  disre- 
gards, if  he  does  not  deride  its  authority.  The  thunders  of  the  Vatican 
traverse  the  Atlantic  unheeded  by  those  who  are  strangers  to  the  Roman 
Church;  but  they  sound  as  awfully  in  the  ears  of  those  who  worship  in 
its  faith,  as  the  communications  of  the  law  once  did  to  the  ancient  people 
of  Israel.  It  is  the  power  of  conscience  which  gives  effect  to  these 
decrees.  They  do  not  influence  by  the  dread  of  temporal  penalties. 
They  have  no  power  to  inflict  a  pecuniary  fine,  or  to  direct  a  moment's 
imprisonment.  But  they  may  exclude  from  Church  fellowship,  or  deny 
a  participation  in  the  Holy  Communion,  and  thus  attain  results  more 
impressive  than  any  of  a  merely  temporary  character. 

When  these  Church  councils  have  not  exceeded  their  jurisdiction,  and 
have  duly  exercised  the  authority  voluntarily  confided  to  them,  no  appeal 
can  be  taken  from  their  decisions  to  any  court  sitting  under  the  law  of 
the  land.  In  this  country  the  tribunals  of  justice  are  not  competent  to 
interfere  with  them.  There  is  no  danger  of  an  imperiiim  in  imperio. 
In  such  an  independent  exercise  of  authoritv  as  this  case  demonstrates, 
there  was  nothing  like  collision  with  the  ministers  or  the  principles  of 
the  temporal  law,  and  there  was  the  clearest  evidence  of  the  utility  of  the 
separation  in  civil  government  between  Church  and  State.     Well  settled 


343  PRESBYTERIAN  CHURCH  CASE. 

authority  will  show  that  exalted  as  may  be  the  court  before  which  we  are 
all  now  arraigned,  it  cannot  reverse,  because  it  cannot  reach  the  proceed- 
ings of  the  General  Assembly  of  1S37.  It  has  no  jurisdiction  over  them. 
The  best  elementary  writers  inform  us  that  the  sovereignty  of  the  state 
cannot  interfere  with  these  matters  unless  they  first  interfere  with  a 
Church  establishment,  such  as  has  no  existence  here.  "  Let  us  remem- 
ber," says  Vattel,  "  that  religion  is  no  farther  an  afl'air  of  state,  than  as  it 
is  exterior  and  publicly  established:  that  of  the  heart  can  only  depend  on 
the  conscience.  *  *  *         *  It  is  a  principle  of  fanati- 

cism, a  source  of  evils,  and  the  most  notorious  injustice  for  weak  mortals 
to  imagine  that  they  ought  to  take  up  the  cause  of  God,  maintain  his 
glory  by  acts  of  violence,  and  revenge  him  on  his  enemies.  "  Let  us 
only  give  to  sovereigns,"  said  a  great  statesman  and  an  excellent  citizen, 
"  let  us  give  them  for  the  common  advantage,  the  power  for  punishing 
whatever  is  injurious  to  charity  in  society.  It  does  not  belong  to  human 
justice  to  become  the  revenger  of  the  cause  that  belongs  to  God."  Cicero, 
who  was  as  able,  and  as  great  in  state  affairs,  as  in  philosophy  and  elo- 
quence, thought  like  the  Duke  of  Sully.  In  the  laws  he  proposed  relat- 
ing to  religion,  he  says,  on  the  subject  of  piety  and  interior  religion,  "  If 
any  one  commits  a  fault,  God  will  revenge  it:"  but  he  declares  the  crime 
capital  that  should  be  committed  against  the  religious  ceremonies  estab- 
lished for  the  public  affairs,  and  in  which  the  whole  state  is  concerned. 
The  wise  Romans  were  very  far  from  persecuting  a  man  for  his  creed; 
they  only  required  that  people  should  not  disturb  the  public  order." 
VatteVs  Law  of  Nations,  B.  I.  Ch.  xii.  §  133.  Deorum  injuria 
Diis  curse,  was  the  wise  maxim  of  the  Romans.  Let  the  gods  avenge 
their  own  wrongs.  What  is  it  to  the  government,  in  any  of  its  depart- 
ments, that  I  may  have  been  dismissed  from  the  communion  table  ?  or 
that  any  number  of  persons  may  have  been  excluded  from  a  religious 
assembly,  where  it  has  not  exceeded  its  jurisdiction  and  authority  }  In 
the  case  of  St.  Mary^s  Church,  decided  in  the  Supreme  Court  of  this 
state,  the  subject  was  much  discussed.  Judge  Duncan  in  his  opinion 
says, 

"Yet  in  deciding  on  the  temporal  rights  of  any  religious  society,  it 
becomes  their  duty  to  inquire  into  the  articles  of  their  government  and 
discipline;  for  no  society  can  exist  without  some  government,  give  it 
what  name  you  please,  call  it  ecclesiastical  council,  convocation,  presby- 
tery, synod,  general  assembly — some  claiming  the  right  to  govern  the 
church  jure  divine,  or  by  apostolical  institutions,  and  others  with  more 
humble  pretensions,  claiming  spiritual  authority  from  things  merely 
human;  each  has  a  discipline  and  church  government  of  its  own,  some 
platform,  but  this  is  confined  to  spiritual  matters,  and  exercised  pro  salute 
anirnae. 

"  This  is  a  principle  well  settled  in  this  court.  On  a  writ  of  error 
from  the  Common  Pleas  of  Huntingdon  county.  Riddle  et  al  v.  Stephens, 
2  Serf^.  <§•  Raiole,  542,  it  is  stated  with  great  clearness  and  strength  by  the 
Chief  Justice.  The  demand  of  the  plaintifl'  below,  Stephens,  was  for  ser- 
vices rendered  the  defendants  as  their  pastor.  The  Chief  Justice  observed, 
*the  Presbytery,  according  to  the  rules  and  discipline  of  the  Presbyte- 
rian Church,  had  power  to  suspend  the  functions  of  the  plaintiff,  or  even 
to  remove  him  from  his  ministry;'  so  far  as  respected  his  suspension  or 


MR.  INGERSOLL'S  ARGUMENT.  343 

removal,  the  jury  were  directed  to  consider  the  proceedings  as  evidence, 
hut  no  regard  was  to  be  paid  to  the  details  of  evidence  before  the  Presby- 
tery; the  particular  facts  alleged  or  proved,  were  to  have  no  effect  on  the 
verdict.  The  decision  of  the  Presbytery,  as  to  the  suspension  or  remo- 
val of  the  plaintiff,  was  the  only  matter  to  be  regarded. 

"  Every  Church  has  a  discipline  of  its  own — it  is  necessary  that  it 
should  be  so;  because,  without  rules  and  discipline,  no  body  composed  of 
numerous  individuals,  can  be  governed.  But  this  discipline  is  confined 
to  spiritual  matters;  it  operates  on  the  mind  and  conscience  without  pre- 
tending to  temporal  authority.  No  member  of  the  Church  can  be  fined 
'or  imprisoned;  but  be  he  layman  or  minister,  he  may  be  admonished, 
reproved,  and  finally  ejected  from  the  society.  So  he  may  retire  from  it 
at  his  own  free  will.  Under  these  restrictions,  religious  discipline  may 
produce  much  good,  without  infringing  on  civil  liberty.  Both  plaintiff 
and  defendants  were  subject  to  the  laws  of  the  Church,  both  as  to  the 
induction  and  removal  of  the  plaintiff;  it  was  not  in  the  power  of  the 
defendants  alone  to  remove  the  plaintiff;  the  Presbytery  alone  could  do 
it,  with  a  right  of  appeal  to  the  Synod,  and  in  the  last  place  to  the  General 
Assembly.  This  being  the  case,  it  was  to  no  purpose  to  enter  into  the 
plaintiff's  conduct  before  the  jury;  the  cause  had  been  heard  and  decided 
by  the  Presbytery,  and  so  far  as  regarded  the  plaintiff's  continuance  in 
the  ministry,  the  decision  is  binding,  subject  to  appeal." — 7  Serg.  Sf 
RawWs  Rep.  556. 

In  the  case  oi  Field  x.  Field,  9  WendelVs  Rep.  400;  The  court  says, 
"  So  long  as  the  forms  and  modes  of  proceeding,  by  the  association  under 
whose  direction  the  original  contributors  placed  the  fund,  are  strictly 
complied  with  in  its  management  and  controul,  a  court  of  law  are  incom- 
petent to  interfere."  Had  the  association  undertaken  to  fine  or  imprison 
an  offender,  or  levied  a  distress  to  compel  the  payment  of  ecclesiastical 
dues,  they  would  have  overstepped  the  magic  circle  of  their  jurisdiction, 
and  would  have  interfered  with  civil  rights.  But  when  it  appears  that 
the  parties  have  chosen,  for  certain  purposes,  a  government  for  them- 
selves, have  voluntarily  submitted  to  a  spiritual  assem.bly,  they  must  be 
bound  by  its  decrees,  in  all  matters  within  its  jurisdiction,  and  it  is  not  in 
the  power  of  man  to  afford  relief.  The  rights  and  the  obligations  attend- 
ant upon  such  a  connexion,  are  perfectly  reciprocal.  Dissatisfied  mem- 
bers are  not  compelled  to  adhere  to  an  alliance  which  is  oppressive  in 
reality,  or  which  is,  even  in  their  opinion,  vexatious.  Those  who  have 
voluntarily  connected  themselves  with  any  religious  denomination,  may, 
at  pleasure,  dissolve  the  connexion;  the  door  is  always  open  for  their 
departure. 

Authority  upon  this  point  is  equally  satisfactory.  5  Watts,  43, 
Ebangh  v.  Hendel.  "  Where  the  acts  of  a  corporation  are  in  confor- 
mity to  the  charter,  there  is,  perhaps,  no  choice  for  a  dissatisfied  corpo- 
rator, but  that  which  lies  between  submission  and  secession."  Thus,  the 
Church  cannot  punish  any  one  who  does  not  choose  to  submit  to  its  dis- 
cipline; it  cannot  extend  censures  beyond  its  own  pale.  Almost  every 
man  is  attached  to  some  Church;  yet  he  is  not  bound  to  it  by  ties  stronger 
than  his  own  desires.  When  the  Pilgrims,  after  their  Imig  and  perilous 
voyage,  landed  on  the  rock  of  Plymouth,  they  formed  a  religious  estab- 
lishment, in  accordance  with  the  notions  which  they  brought  with  them 


344  PRESBYTERIAN  CHURCH  CASE. 

from  their  native  land.  Amongst  their  descendants,  every  one  is  obliged 
by  law,  to  contribute  to  the  support  of  some  religious  body;  but  here  we 
have  no  such  regulation;  tithes  in  every  shape  are  purely  voluntary. 
Here  public  sentiment  and  the  law  both  secure  perfect  freedom  in  this 
respect.  No  ligament  or  tie,  stronger  than  the  power  of  conscience, 
binds  any  individual  to  his  Church.  No  man  is  obliged  to  join  any  reli- 
gious denomination,  or  remain  with  it  longer  than  he  desires. 

We  next  inquire  what  sort  of  powers  the  General  Assembly  possesses. 
It  has,  perhaps,  none  in  strict  analogy  to  the  powers  of  either  our  legisla- 
tures or  courts  of  justice.  The  anathemas  of  a  spiritual  assembly  can  have 
no  temporal  effects — they  can  touch  the  conscience  only.  But  why  has 
it  not  legislative — quasi  legislative,  as  well  as  judicial  functions?  No 
reason  has  been  given  except,  perhaps,  that  which  is  derived  from  the  use 
of  the  word  judicatory.  All  the  Presbyterian  councils  or  meetings  are 
called  judicatories:  the  session,  the  Presbytery,  the  Synod,  and  the 
General  Assembly,  are  all  judicatories.  The  business  of  the  body,  so 
called,  is  hence  inferred  to  be  merely  judicial;  but  this  is  a  fallacious 
inference.  Are  we  to  be  told,  that  the  word  court,  means  only  this  court 
oi  Nisi  Prius,  or  the  Supreme  Court  from  which  it  emanates  ?  That  would 
be  taking  it  in  a  very  limited  sense.  The  term  is  applied  as  well  to 
legislative  as  judicial  bodies.  Such  is  the  General  Court  of  Massachusetts; 
and  Blackstone  speaks  of  the  High  Court  of  Parliament,  the  proceedings  of 
which  are  mainly  legislative.  Our  best  writers  use  the  term  in  the  most 
enlarged  meaning.  Walter  Scott  puts  into  the  lips  of  one  of  his  heroes 
this  well  known  phrase: 

"  What  cared  the  chieftain  if  lie  stood 
On  highland  heath  or  Holy  Rood  : 
He  rights  such  wrongs  wherever  given, 
If  it  were  in  the  Courts  of  Heaven." 

We  speak  of  the  court  of  a  temple,  the  court  of  a  castle,  a  court  yard,  and 
of  Court  as  the  place  of  royal  reception.  The  word  is  not  confined  to 
tribunals  of  justice. 

What  is  to  prevent  the  Assembly  from  exercising  legislative  power? 
It  is  plain  that  they  are  not  always,  nor  usually  sitting  as  judges;  for 
when  they  are  about  to  assume  that  character,  a  particular  form  of  words 
is  addressed  to  the  members,  reminding  them  of  the  greater  solemnity  of 
the  business  upon  which  they  are  entering.  In  the  performance  of  their 
more  ordinary  duties,  the  same  form  is  not  observed.  The  Assembly 
has  too,  a  Judicial  Committee,  just  as  the  Senate  and  House  of  Represen- 
tatives of  the  United  States  have;  and  when  they  proceed  to  the  consi- 
deration of  matters,  brought  before  them  by  that  committee,  an  especial 
appeal  is  made  to  the  throne  of  grace;  a  more  grave  and  serious  deport- 
ment than  usually  accompanies  the  other  proceedings  of  the  body,  is 
enjoined. 

Take  up  the  Minutes  of  1832,  page  316.  "No.  1,  reported  by  the 
Judicial  Committee,  viz:  'A  complaint  of  certain  members  of  the  Pres- 
bytery of  Philadelphia,  against  the  Synod  of  Philadelphia,  for  refusing  to 
divide  said  Presbytery,'  was  taken  up.  The  Moderator  read  the  rule 
requiring  the  members  to  regard  their  high  character  as  judges  of  a  court 
of  Jesus  Christ,  and  the  solemn  duty  on  which  they  are  about  to  enter." 


MR.  INGERSOLL'S  ARGUMENT. 


345 


This  is  the  mode  of  proceeding  on  all  such  occasions.  The  power  is 
indeed  limited:  it  falls  very  far  short  of  what  Blackstone  rather  profanely 
calls  the  omnipotence  of  Parliament:  and  in  a  judicial  character,  it  is  not 
half  so  strong  as  that  of  a  common  justice  of  the  peace;  yet  though  a 
limited,  it  is  often  a  legislative  authority.  A  few  examples  will  suffice. 
Minutes  of  1832,  p.  322. 

"Overture  No.  1,  viz:  On  the  subject  of  Missions,  was  taken  up  and 
referred,  &c." 

"  Overture  No.  2,  viz:  On  correspondence  with  Foreign  Bodies,  was 
taken  up  and  committed,  &c." 

"Overture  No.  3,  viz:  On  reducing  the  rates  of  representation  to  the 
General  Assembly,  was  taken  up  and  referred,  &c." 
,    And  so  on  with  Overtures  Nos.  4,  5,  6,  &c.     Then  on  the  next  page 
we  find, 

"Overture  No.  11,  viz:  A  request  that  the  31st  of  December,  1832, 
be  recommended  as  a  season  of  prayer  for  the  conversion  of  the  world, 
was  taken  up  and  committed,  &c." 

Is  not  that  legislative — purely,  benevolently  legislative  action  ?  The 
appointment  of  a  day  of  prayer  for  the  spread  of  the  blessed  Redeemer's 
kingdom  all  over  the  world  ? 

"  Overture  No.  13,  viz:  On  publishing  a  new  edition  of  the  Book  of 
Discipline  and  Form  of  Government,  was  taken  up  and  laid  on  the 
table." 

"Overture  No,  14,  viz:  On  the  subject  of  the  validity  of  Roman 
Catholic  baptisms,  was  ordered  to  be  taken  up,  &c." 

"Overture  No.  15,  viz:  On  ordination  by  a  deposed  minister,  or  by 
laymen,  was  taken  up,  &c." 

"  The  report  of  the  committee  to  whom  was  committed  the  reference 
from  the  Synod  of  Philadelphia,  in  relation  to  the  right  of  Presbyteries, 
to  require  every  Minister  or  Licentiate,  coming  to  them  by  certificate 
from  another  Presbytery,  or  other  ecclesiastical  body,  to  submit  to  an 
examination  before  he  be  received,  &c." 

All  these  are  examples  of  church  legislation,  and  if  I  chose  I  could 
multiply  examples  to  any  extent.     Same  Minutes,  page  325: — 

"  It  being  understood,  that  Christians  and  churches,  both  in  this  country 
and  in  Europe,  have  at  different  times  desired  the  public  designation  of  a 
day,  to  be  observed  by  all  Christians  throughout  the  world,  as  a  day  of 
fasting  and  prayer,  for  the  outpouring  of  the  Holy  Spirit  on  the  whole 
family  of  man,  and  this  Assembly  being  deeply  impressed  with  the  impor- 
tance and  high  privilege  of  such  an  observance;  and  feeling  urged  and 
encouraged  to  more  importunate  supplications,  in  view  of  the  recent  revi- 
vals of  religion  in  this  land,  as  well  as  the  signs  of  the  present  time  in 
relation  to  the  prospects  of  the  Church  in  other  nations,  therefore, 

"  Resolved,  That  it  be  recommended  to  the  ministers  and  churches, 
under  the  supervision  of  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States,  and  the  churches  in  correspondence  with 
the  same,  to  observe  the  First  Monday  in  January,  1833,  as  a  day  of 
Fasting  and  Prayer,  for  the  Divine  blessing  on  the  ministry  of  the 
Gospel  throughout  the  world,  for  the  revival  of  religion  in  the  whole  of 
Christendom,  and  for  the  entire  success  of  those  benevolent  enterprises 
which  have  for  their  object,  the  world's  conversion  to  God. 

44 


346  PRESBYTERIAN   CHURCH  CASE. 

^^  Resolved,  That  other  denominations  of  Christians  in  the  United 
States,  and  the  Christian  Churches  in  all  other  countries,  be,  and  they 
hereby  are  affectionately,  andvvith  Christian  salutations,  invited  to  concur 
in  the  observance  of  the  day  above  specified," 

These  are  instances  of  practical  legislation.  It  will  appear  from  a  few 
passages  in  the  Form  of  Government  and  Confession  of  Faith,  that  these 
church  judicatories  have,  in  their  essential  formation,  legislative  powers. 

"  It  belongeth  to  Synods  and  councils,  ministerially  to  determine  con- 
troversies of  faith,  and  cases  of  conscience;  to  set  down  rules  and  direc- 
tions/or the  better  ordering  of  the  public  worship  of  God,  d^n(\  govern- 
ment of  his  ChurchP — Conf  of  Faith,  Chap,  xxxi.  Sect.  2.  How 
could  you  give  more  legislative  power  than  is  found  in  the  last  sentence? 
"to  set  down  rules  and  directions  for  the  better  ordering  of  the  public 
worship  of  God,  and  government  of  his  Church."  You  cannot  inscribe 
or  imagine  a  more  comprehensive  grant  of  quasi  legislative  authority. 
Turn  to  the  Form  of  Government,  Chap.  xii. 

"The  General  Assembly  is  the  highest  judicatory  of  the  Presbyterian 
Church," — The  highest  of  all  those  councils,  to  which  the  Confession  of 
Faith  attributes  such  important  legislative  powers. — "  It  shall  represent 
in  one  body,  all  the  particular  churches  of  this  denomination;  and  shall 
bear  the  title  of  The  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America." 

"The  General  Assembly  shall  consist  of  an  equal  delegation  of  Bishops 
and  Elders  from  each  Presbytery,  in  the  following  proportion,  &c." 

Mr.  Ingersoll  read  also  sections  4th  and  5th.      Vide  a7ite,  pp.  335-6. 

Thus  we  see,  that  the  powers  conferred  on  the  General  Assembly  are 
just  as  much  legislative  as  judicial.  Strictly  speaking,  they  are  neither 
one  nor  the  other;  but  using  the  terms  in  the  sense  in  which  they 
have  already  here  been  used,  this  judicatory  is  both  a  legislative  and 
judicial  body,  though,  in  each  capacity,  it  acts  only  in  a  limited  sphere. 

So  much  it  has  seemed  necessary  to  say,  before  coming  to  the  conside- 
ration of  the  proceedings  themselves,  of  the  General  Assembly  of  1837. 
As  they  stand  on  the  minutes,  they  appear  in  the  form  of  a  series  of  reso- 
lutions merely.  They  are  nothing  more,  in  either  form  or  substance,  than 
the  discontinuance  of  a  simple  regulation  of  the  Assembly,  which  was  adop- 
ted in  1801.  It  was  a  regulation  of  expediency,  designed  only  for  tempo- 
rary convenience,  and,  like  all  others  of  like  character,  subject  to  abroga- 
tion. The  abrogation  of  it  was  lawful.  It  terminated  an  unsatisfactory 
and  illegal  connexion  with  a  number  of  dissimilar  churches.  It  dissolved 
a  partnership,  which  had  no  settled  or  definite  term.  It  consisted,  of  the 
breaking  up  of  an  association,  for  the  establishment  of  which  there  had 
never  been  any  motives  of  advantage  to  the  one  side,  and  there  were  no 
longer  any  claims  for  assistance,  or  necessity  for  protection  on  the  other. 
It  communicated  to  those,  who  had  long  partaken  of  many  voluntary 
kindnesses,  who  had  grown  up  under  the  fostering  care  of  a  distant 
friend,  and  become  strong  by  borrowed  strength,  that,  as  they  were  now 
able,  they  ought  to  be  willing  to  take  care  of  themselves.  It  was  (if  you 
please)  declining  any  longer  to  confer  favours  which  it  was  believed  were 
abused.  An  arrangement  thus  voluntarily  entered  into,  might  be  volun- 
tarily renounced.  The  regulation  of  devoting  a  particular  hour,  at  par- 
ticular seasons,  for  the  concurrent  worship  of  Almighty  God  in  every 


MR.  INGERSOLL'S  ARGUMENT. 


347 


Christian  community,  is  of  mucii  higher  sanctity.  Yet  what  could  pre- 
vent the  discontinuance  of  the  arrangement  by  any  particular  body  of 
Christians  at  their  pleasure? 

The  abrogation  was,  not  merely  thus  lawful,  but  it  was  of  peculiar  and 
obvious  expediency,  considering  the  relations  in  which  the  parties  stood 
towards  each  other.  It  was  a  proceeding,  founded  upon  the  anticipation  of 
strife,  and  a  wise  desire  to  avoid  it.  It  was  saying,  "  Is  not  the  whole 
land  before  thee?  Separate  thyself  from  me.  If  ithou  wilt  take  the  left 
hand,  I  will  go  to  the  right." 

It  was  within  the  letter  and  spirit  of  the  Constitution.  It  regulated 
inferior  judicatories,  so  far  as  they  were  subject  to  legitmate  control, 
and  no  farther:  and  it  merely  left  apart  those  which  were  not  properly 
subject  to  its  influence.  To  the  extent  that  it  had  power  to  do  so,  it 
tnodified  Synods  and  their  constituent  parts;  and,  where  it  had  no 
power,  it  assumed  that  there  ought  to  be  no  connexion,  and  it  disowned 
them.  This  was  done,  because  the  existing  organization  worked  badly 
in  practice,  and  threatened  to  become  worse;  because  it  was  productive 
of  present  disorder,  and  was  prolific  of  injurious  consequences  to  the  legi- 
timate members. 

The  whole  history  of  the  General  Assembly  shows  the  power,  and  the 
practical  exercise  of  it.  The  General  Assembly,  itself,  was  formed  by 
the  expansion  of  a  pre-existing  Synod. — Digest,]}.  1,  2,  38.  In  1834,  the 
Synod  of  the  Chesapeake  was  dissolved. — p.  317.  In  1835,  the  Synod 
of  Delaware  was  dissolved.  In  1837,  the  Third  Presbytery  of  Philadel- 
phia was  dissolved;  and  why  should  not  four  Synods  be  dissolved  in 
1837? 

The  history  of  the  Third  Presbytery  is  a  history  of  dissolutions  and 
revivals.  It  has  been  moulded  and  fashioned  according  to  the  will  of  the 
Synod  and  General  Assembly,  and  has  either  submitted  to  every  change, 
or,  if  it  has  not  submitted,  has  been  regarded  as  rebellious.  First  it  was 
formed,  then  dissolved,  then  restored,  then  its  geographical  limits  were 
altered,  and,  lastly,  by  the  Assembly  of  1837,  it  was  finally  dissolved. 
This  history  shows  the  power  exercised  by  the  General  Assembly.  In 
the  other  cases,  certain  Synods  had  been  irregularly  formed,  and  they 
were  dissolved  exactly  as  was  the  Third  Presbytery.  When  the  New- 
school  complain  in  1838,  of  the  exclusion  of  those  Synods,  they  lay  no 
stress  at  all  upon  the  case  of  this  Presbytery.  Dr.  Patton's  resolution 
does  not  mention  it — does  not  even  allude  to  it.  He  moved  only  that 
the  roll  should  be  formed,  "  by  including  therein  the  names  of  all  Com- 
missioners from  Presbyteries  belonging  to  the  said  Presbyterian  Clvurch, 
not  omitting  the  Commissioners  from  the  several  Presbyteries  within  the 
bounds  of  the  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western 
Reserve;" — ante,  p.  51.  The  Third  Presbytery  he  entirely  overlooks: 
the  exclusion  of  the  Synods  is  the  only  cause  of  complaint.  Nor  did  Dr. 
Mason  say  a  word  in  regard  to  this  Presbytery.  I  suppose  that  he  was 
willing  to  admit  the  propriety  of  ils  dissolution.  When  he  arose,  saying 
that  he  had  in  his  hand  the  commissions  of  certain  Commissioners  from 
different  Presbyteries,  had  he  any  commission  from  the  Third  Presby- 
tery of  Philadelphia  ?  Here  is  the  bundle  which  he  presented:  it  con- 
tains no  such  commission.     His  application  was  confined  to  the  case  of 


348  PRESBYTERIAN  CHURCH  CASE. 

the  Presbyteries  belonging  to  four  Synods.  This  was  a  plain  admission 
of  the  power  of  the  Assembly  to  dissolve  a  Presbytery. 

I  have  thus  shown,  by  various  precedents,  the  right  of  the  Assembly 
to  dissolve  inferior  judicatories;  and  that  this  right  was  exercised  in  the 
case  of  the  Third  Presbytery,  at  a  season  of  the  warmest  party  conflict, 
was  acquiesced  in  by  the  New-school,  and  that  no  doubt  of  its  constitu- 
tionality was  murmured  in  1S38.  And  these  dissolutions  were  effected, 
not  by  judicial  acts,  but  by  a  clear  exercise  of  legislative  power. 

The  "  Plan  of  Union"  was  not  a  contract.  This  must  be  acknow- 
ledged by  my  learned  friends  on  the  opposite  side.  They  cannot  for  a 
single  moment  believe  it  to  have  been  so.  Who  made  the  contract  ?  It 
has  no  parties,  and  they  are  essential  to  a  contract.  It  is  on  its  face  a 
plan  of  union  among  the  new  settlers;  not  a  union  between  the  General 
Assembly  and  the  Association  of  Connecticut.  Indeed  it  is  characterized 
by  its  own  words,  as  a  mere  set  of  regulations  adopted  by  the  Assembly 
and  the  Association.  Now,  I  don't  require  to  be  shown  a  formal  inden- 
ture, but  what  properties  has  it  of  a  contract  ?  Who  are  the  parties  ? 
What  was  the  consideration  ?  What  the  sanction  ?  It  is  no  contract, 
and  if  it  had  the  outward  form  of  one,  I  should  still  contend  that  it  had 
no  binding  efficacy;  for  the  Association  of  Connecticut  had  not  in  law  the 
power  to  bind  itself. 

Here  is  a  work  which  has  just  been  put  into  my  hand — "  The  Ency- 
clopedia of  Religious  Knowledge,"  a  work  published  in  New  England, 
by  Congregationalists  themselves,  and  which  therefore  may  be  supposed 
to  give  a  correct  account  of  their  peculiar  institutions.  You  are  aware, 
that  there  are  few  Presbyterians  beyond  Albany;  that  they  are  confined 
chiefly  to  the  middle,  southern,  and  western  states;  and  that  in  New 
England  the  people  generally,  who  are  not  Episcopalians,  or  Unitarians, 
are  Congregationalists.  You  will  find  that  the  Congregational  Associa- 
tions are  of  most  limited  authority.  There  is  another  Assembly  called  a 
Consociation,  which  also,  ex  vi  termini,  is  a  Congregational  body.  Both 
these  are  strictly  limited  in  their  powers.  Their  decisions  are  merely 
advisory,  and  are  of  force  only  by  courtesy  or  as  they  affect  the  con- 
science: even  in  spiritual  matters  they  are  not  binding. 

"Associations  are  composed  of  ministers  only,  who  meet  for  their  own 
benefit,  and  to  consult  for  the  good  of  the  churches.  They  examine  and 
license  candidates  for  the  ministry,  but  have  no  power  of  making  laws 
for  the  churches."  There  we  have  the  fact  for  which  I  am  contending, 
distilled  into  a  single  phrase — "  but  have  no  power  of  making  laws  for 
the  churches.  Some  maintain  that  on  the  general  principle  that  a  man 
is  to  be  tried  by  his  peers,  a  minister  is  accountable  in  the  first  case  only 
to  the  association  of  which  he  is  a  member,  so  that  until  he  is  deposed 
by  them,  or  by  the  consociation,  before  which  they  bring  him  for  trial, 
he  is  not  amenable  to  the  church  of  which  he  is  a  member.  Others  hold, 
that  a  church  has  a  right  to  try  its  minister  in  the  same  way  that  it  would 
one  of  its  private  members.  The  principle  laid  down  in  the  platforms  is, 
that  in  the  discipline  of  ministers,  there  is  to  be  a  council  of  churches 
where  it  may  be  had ;  but  where  this  cannot  be,  the  church  may  proceed 
to  act.  In  Connecticut,  a  church  cannot  arraign  a  minister  before  a  con- 
sociation, until  the  association  have  first  decided  whether  there  is  suffi- 
cient cause  for  a  trial."  pp.  406 — 7. 


MR.  INGERSOLL'S  ARGUMENT. 


349 


Then  on  the  same  page,  '<  In  the  year  1801,  a  plan  was  adopted  by  the 
General  Assembly  of  the  Presbyterian  Church,  and  the  General  Associa- 
tion of  Connecticut,  by  which  Presbyterians  and  Congregationalists,  in 
the  new  settlements. of  the  western  states,  were  effectually  amalgamated. 
This  plan  places  the  two  classes  on  equal  terms  in  union  churches, 
securing  to  each  a  mode  of  discipline  corresponding  to  their  principles, 
and  gives  to  the  members  of  the  standing  committee  of  Congregational 
churches,  the  same  standing  and  powers  in  presbyteries  and  synods, 
as  belong  to  the  ruling  elders  of  the  Presbyterians.  Four  hundred  of 
these  union  churches  have  been  planted  in  the  western  states,  by  the 
Congregationalists  ir.  Connecticut  alone. 

Are  we  then  told  of  having  been  ourselves  sustained  by  the  "  Plan  of 
Union,"  of  having  received  from  these  Congregationalists  money  and 
prayers,  and  having  "  pocketed  both,"  when  under  the  auspices  of  that 
plan,  by  our  countenance  and  aid,  there  have  grown  up  four  hundred  of 
these  mixed  churches? 

Mr.  Wood  objected  to  the  counsel's  reading  from  the  "  Encyclopedia 
of  Religious  Knowledge,"  as  no  part  of  it  had  been  offered  in  evidence, 
and  the  court  sustained  the  objection. 

I  am  now  about  to  enter  upon  a  field  not  absolutely  unexplored,  nor  yet, 
perhaps,  sufficiently  familiar  to  you — the  proceedings  of  the  Assembly  of 
1837.  These  were  given  in  evidence  by  the  opposite  counsel  themselves. 
Though  the  whole  case,  as  regards  them,  may  be  distilled  down  to  the 
question,  whether  the  four  disowned  Synods  were  ever  regularly  and  con- 
stitutionally connected  with  the  General  Assembly;  yet  there  was  a 
variety  of  proceedings  of  all  which  it  is  necessary  that  you  should  take 
notice.  The  first  act  was  the  resolution  declaring  the  "  Plan  of  Union" 
to  be  abrogated.  The  next  a  series  of  propositions  terminating  in  the 
declaration,  that  by  virtue  of  the  act  abrogating  the  "  Plan,"  the  Synod 
of  the  Western  Reserve  was  no  longer  a  part  of  the  Presbyterian  Church. 
Then  a  similar  declaration  was  made,  that  certain  other  three  Synods — 
those  of  Utica,  Geneva,  and  Genesee,  were,  in  consequence  of  the  abro- 
gation, out  of  the  Presbyterian  Church. 

Judge  Rogers.  Can  you  tell  me,  Mr.  Ingersoll,  when  the  Synod  of 
Pittsburgh  was  created  ? 

Mr.  Ingersoll.  The  Digest  will  show  us.  Here  is  an  account  of  the 
matter,  page  39.  In  1802,  the  Synod  of  Virginia  was  divided  into  three 
parts,  one  of  which  retained  the  name  of  the  Synod  of  Virginia;  another 
was  constituted  a  Synod  by  the  title  of  the  Synod  of  Pittsburgh;  and  of 
the  third  portion  was  formed  the  Synod  of  Kentucky. 

I  have  said,  gentlemen,  that  the  second  series  of  proceedings  com- 
plained of,  was  that  ending  in  the  declaration,  that  by  virtue  of  the  abro- 
gation of  the  "  Plan  of  Union,"  the  Synod  of  the  Western  Reserve  was 
no  longer  a  constituent  part  of  the  Church;  and  the  third,  that  which 
resulted  in  a  similar  declaration  with  regard  to  the  three  Synods,  of  Utica, 
Geneva,  and  Genesee.  Though  these  which  I  have  mentioned  were  the 
principal,  and  most  prominent  proceedings,  they  were  not  the  only  ones 
to  which  I  shall  call  your  attention.  There  were,  besides  them,  mea- 
sures which  served  to  illustrate  the  disposition  of  the  parties,  and  the 
mode  subsequently  adopted.  Two  of  these  are  of  essential  importance. 
They  were  opposed  and  finally  arrested  by  the  gentlemen  on  the  other 


350  PRESBYTERIAN  CHURCH  CASE. 

side,  though  they  now  contend  tliat  one  of  them  was  the  only  proper 
measure  to  be  taken  by  the  Old-school,  and  press  that  point  upon  us. 
This  was  the  citation  of  the  four  Synods.  The  other  measure  to  which  I 
allude,  and  upon  its  necessity  both  parties,  at  one  period  of  the  proceed- 
ings, seemed  to  be  agreed,  was  the  division  of  the  Church.  The  former 
was  opposed  by  the  New-school  when  brought  forward  by  the  Old,  and  by 
Mr.  Jesup  among  others,  though  afterwards,  when  his  friends  found 
themselves  defeated,  he  proposed  what  was  in  substance  this  very  mea- 
sure. You  will  observe  as  I  read,  that  all  the  acts  of  which  the  other 
party  complain,  were  passed  after  ample  deliberation;  and  it  was  only 
when  abundant  time  had  been  given  for  debate;  when  each  measure  had 
been  considered  at  length;  when  the  patience  of  every  one  was  exhausted 
by  arguments  which  had  extended  beyond  satisfaction  to  satiety;  vrhen 
the  fondness  for  speech-making  seemed  to  increase  rather  than  diminish, 
and  the  discussion  appeared  likely  to  occupy  weeks  or  months,  unless  in 
some  way  checked,  that  it  was  arrested  by  a  call  for  the  previous  ques- 
tion. The  subject  of  the  *'  Plan  of  Union"  began  to  occupy  the  attention 
of  the  Assembly  at  a  very  early  period  of  its  session.  It  began  to  sit  on 
Thursday  the  ISth  day  of  May. 

On  Friday  afternoon.  May  1.9th — the  very  next  day,  "A  document  pur- 
porting to  be  a  memorial  from  a  Convention  of  Presbyterian  Ministers  and 
Elders,  now  in  session  in  this  city,  v^'as  presented  to  the  Assembly,  and 
was  referred  to  the  Committee  of  Bills  and  Overtures."  That  was  the  ori- 
gin of  the  whole  of  these  proceedings.  On  Saturday  morning  this  com- 
mittee reported,  "  Overture,  No.  1,  viz:  'Testimony  and  memorial  of  the 
Convention,'  in  relation  to  errors  and  irregularities  in  the  Presbyterian 
Church,"  with  three  other  overtures,  being  memorials  on  the  same  sub- 
ject. "  It  was  moved  to  receive  and  read  these  overtures,  and  after  de- 
bate they  were  re-committed."  Then  on  the  same  day,  "  The  Committee 
of  Bills  and  Overtures  again  reported  the  Overtures  Nos.  1,2,  3,  and  4, 
which  had  been  re-committed  to  them.  Overture  No.  1,  was  read  and 
re-committed"  to  a  select  committee.  On  Monday  morning,  May  22d, 
this  committee  made  a  report,  and  after  some  debate,  one  branch  of  the 
subject  was  postponed  till  Tuesday,  and  that  part  of  the  report  relating  to 
the  "Plan  of  Union"  was  made  the  order  of  the  day  for  that  afternoon, 
and  accordingly  was  then  discussed.  At  this  time  perfect  harmony 
seems  to  have  reigned.  The  report  of  the  committee  in  regard  to  the 
plan  of  1801,  embraced  three  resolutions,  and  of  these  the  first  two, 
relating  to  friendly  intercourse  between  the  Presbyterian  and  Congre- 
gational Churches  were  passed,  as  it  appears,  without  difficulty.  The 
third  was  "discussed  for  some  time,"  and  then  the  Assembly  adjourned. 
On  Tuesday  morning  the  discussion  continued,  and  was  also  resumed  on 
Tuesday  afternoon,  when,  after  considerable  debate  the  resolution  was 
adopted,  by  a  vote  of  one  hundred  and  forty-three,  to  one  hundred  and 
ten.  This  was  the  essential  part  of  the  report,  and  was  therefore  made 
the  third  of  the  series.  The  others,  as  I  have  said,  related  merely  to  the 
continuance  of  friendly  intercourse.  "  The  resolution,"  says  the  minute, 
"was  then  adopted  by  yeas  and  nays,  as  follows,  viz: 

"3.  But  as  the 'Plan  of  Union'  adopted  for  the  new  settlements  in 
1801,  was  originally  an  unconstitutional  act  on  the  part  of  that  Assem- 
bly— these  important  standing  rules  having  never  been  submitted  to  the 


MR,  INGERSOLL'S  ARGUMENT.  35 j 

Presbyteries — and  as  they  were  totally  destitute  of  authority  as  proceed- 
ing from  the  General  Association  of  Connecticut,  which  is  invested  with 
no  power  to  legislate  in  such  cases," — Now,  gentlemen,  whether  I  pro- 
duce positive  evidence  of  this  fact — that  the  Association  was  entirely 
destitute  of  authority— or  not,  here  it  is  given  by  the  Old-school  as  one 
reason  for  the  abrogation,  and  the  other  side  are  bound,  at  this  time,  to 
disprove  it, — "and  especially  to  enact  laws  to  regulate  the  churches  not 
within  her  limits;" — For  these  churches  are  as  much  out  of  the  limits  of 
the  Association  of  Connecticut,  as  France  is  without  the  limits  of  the 
United  States — "and  as  much  confusion  and  irregularity  have  arisen  from 
this  unnatural  and  unconstitutional  system  of  union,  therefore,  it  is  re- 
solved, that  the  Act  of  the  Assembly  of  1801;  entitled  a  'Plan  of  Union/ 
be,  and  the  same  is  hereby  abrogated." 

The  reasons  then  for  the  abrogation  are  distinctly  laid  down  in  the 
resolution  itself:  here  is  the  basis  of  the  measure.  It  is  therefore  for 
our  opponents  to  prove  that  these  reasons  are  false.  The  evidence  which 
I  offered  just  now  went  to  this  point,  but  why  did  not  they  bring  evidence 
in  regard  to  the  matter?  They  attempt  to  turn  out  our  trustees  because 
of  an  act  which  they  say  was  unconstitutional  and  void.  Well,  they  must 
show  its  unconstitutionality  by  demonstrating  that  the  reasons  for  wdiich 
it  was  passed  were  not  good.  These  "  unsuspecting  brethren"  certainly 
knew  the  grounds  on  which  the  abrogation  rested;  and  should  have  been 
prepared  with  evidence  to  show  that  they  were  untenable.  They  have 
not  been  surprised  by  reasons  started  upon  them  in  the  midst  of  this  pro- 
ceeding. They  were  told  in  1837,  that  the  "Plan  of  Union"  was  "to- 
tally destitute  of  authority  as  proceeding  from  the  General  Association 
of  Connecticut."  I  put  it  to  your  Honour,  as  a  principle  of  this  case, 
that  the  plaintiffs  are  bound  to  show  why  our  act  was  unconstitutional 
and  void;  and  that  as  we  have  given  reasons  for  it  in  the  resolution  itself, 
the  burden  of  disproving  our  assertions  rests  on  them.  It  is  not  our 
business  to  sustain  our  reasons,  but  theirs  to  destroy  them.  These  asser- 
tions were  made  nearly  two  years  ago,  and  if  they  have  not  now  been 
met,  the  attempt  to  disprove  them  must  be  considered  as  abandoned. 

The  next  proceeding — Minutes,  p.  422 — was  a  farther  report  of  the 
Committee  on  Overture,  No.  1,  "respecting  so  much  of  the  memorial  as 
related  to  the  toleration  of  gross  errors  in  doctrine,  or  disorders  in  prac- 
tice, by  inferior  judicatories,"  presented  on  the  morning  of  Wednesday, 
May  24th.  You  will  perceive  from  an  inspection  of  the  Minutes,  that 
these  different  subjects  underwent  full  discussion,  that  ample  time  was 
given  for  argument  before  the  decisions  were  made.  On  Thursday  morn- 
ing a  motion  was  offered  to  take  up  the  report  last  mentioned,  and  in  the 
afternoon  the  house  resumed  the  consideration  of  this  matter,  and  the 
motion  was  carried,  after  which  certain  resolutions  were  presented — reso- 
lutions proposing  a  measure  which  our  opponents  now  say  should  have 
been  adopted,  but  which  was  then  abandoned  on  account  of  their  strenu- 
ous and  stern  opposition — "  Resolutions  to  cite  to  the  bar  of  the  next 
Assembly  such  inferior  judicatories  as  should  appear  to  be  charged  by 
common  fame  with  irregularities,  were  offered  and  debated  for  a  consider- 
able time."  You  would  be  surprised  to  read  the  names  of  those  who 
opposed  this  measure.  Were  they  Dr.  Elliott  and  his  friends?  No,  they 
were  these  "unsuspecting  brethren,"  who  have  been  excluded  without 


352 


PRESBYTERIAN  CHURCH  CASE. 


notice  and  without  trial,  who  should  have  been  cited  to  answer  for  their 
offences,  with  Dr.  Beman  and  Mr.  Cleaveland  at  their  head — the  two 
gentlemen  who  are  forward  to  represent  their  party  on  every  occa- 
sion excepting  the  present.  They,  at  that  time,  opposed  the  measure  of 
citation. 

On  Friday  morning  and  afternoon  these  resolutions  were  amply  deba- 
ted, until  at  last  the  previous  question  was  demanded.  And  what  but  the 
call  for  the  previous  question  would  have  put  an  end  to  the  discussion? 
This  measure  is  always  regarded  as  a  hard  one  by  a  minority,  for  they 
are  often  inclined  to  continue  debate  until  the  end  of  the  session  comes 
to  their  relief  Though  we  cannot  tell  the  precise  number  of  hours 
which  the  subject  occupied,  or  whether  the  Assembly  sat  till  late  in  the 
evening,  it  is  evident  that  ample  opportunity  was  given  to  consider  the 
question.  Among  the  ayes  we  find  Dr.  Alexander,  who  has  been  pre- 
sent here  with  Dr.  Green,  during  some  of  the  stages  of  this  proceeding; 
Dr.  Junkin;  Mr.  Symington,  and  Mr.  Lowrie,  who  have  been  examined 
as  witnesses  for  the  defendants,  with  others  of  the  same  party.  On  the 
opposite  side  we  find  Dr.  Beman,  Mr.  Jesup,  Mr.  Cleaveland,  and  a  host 
of  their  friends — in  all  one  hundred  and  twenty-two,  against  one  hundred 
and  twenty-eight — a  most  powerful  minority;  there  being  but  the  small 
majority  of  six  for  doing,  what  was  certainly  the  most  natural  and 
reasonable  thing  in  the  world,  what  the  New-school,  the  very  men  that 
so  strenuously  opposed  it,  now  say  they  wished;  what  they  desired  of  all 
things.  Not  only  were  they  a  united  opposition  ;  not  only  was  the  ques- 
tion decided  by  a  pure  party  vote;  bui  the  majority  was  so  small  that  the 
Old-school,  like  the  English  ministers,  who  are  obliged  to  leave  their 
places  when  they  are  not  sustained  in  Parliament,  must  have  regarded 
such  success  as  little  better  than  a  defeat.  And  no  sooner  were  the 
resolutions  carried  by  even  this  insignificant  majority,  than  one  of  those 
gentlemen  who  afterwards  brought  some  of  the  suits  which  have  been 
given  in  evidence  from  the  docket — Mr.  Hay,  "  for  himself  and  others, 
gave  notice  of  a  protest  against"  them — against  the  measures  which  it  is 
now  said  would  have  been  so  just  and  reasonable.  Mr.  Hay  introduced 
his  protest,  and  there  the  proceeding  was  suspended,  except  that  a  com- 
mittee was  appointed  agreeably  to  a  provision  of  the  act,  to  digest  a  plan 
of  procedure.     The  resolutions  were  as  follows: 

"1.  Resolved,  That  the  proper  steps  be  now  taken,  to  cite  to  the  bar 
of  the  next  Assembly,  such  inferior  judicatories  as  are  charged  by  common 
fame  with  irregularities. 

"  2.  That  a  special  committee  be  now  appointed  to  ascertain  what  inferior 
judicatories  are  thus  charged  by  common  fame,  prepare  charges  and  spe- 
cifications against  them,  and  to  digest  a  suitable  plan  of  procedure  in  the 
matter;  and  that  said  committee  be  requested  to  report  as  soon  as  prac- 
ticable. 

"  3.  That,  as  citations  on  the  foregoing  plan  are  the  commencement  of 
a  process,  involving  the  right  of  membership  in  the  Assembly;  there- 
fore. Resolved,  That  agreeably  to  a  principle  laid  down.  Chap.  v.  Sec.  9th, 
of  the  '  Book  of  Discipline,'  the  members  of  said  judicatories  be  excluded 
from  a  seat  in  the  next  Assembly,  until  their  case  shall  be  decided." — 
Vid  ante,  ]).  38. 

This  never  was  decided;  but  is  it  fair  for  the  other  party  now  to  com- 


MR.  INGERSOLL'S  ARGUMENT.  353 

plain,  that  the  measure  was  not  carried  out,  after  they  voted  with  a  single 
voice  in  opposition,  and  after  Mr.  Hay,  in  the  name  of  his  New-school 
brethren,  offered  a  solemn  protest  against  it?  Though  there  had  been  no 
such  protest,  the  plan. must  have  been  ultimately  abandoned;  but  followed 
up  as  the  resolutions  instantly  were  by  this  protest,  it  became  evident 
that  the  minority  were  too  violent  in  their  opposition  for  the  measure  to 
be  pursued  any  farther.  The  necessary  result  of  the  proceedings  of  the 
New-school  was,  that  the  other  party  were  driven  to  devise  some  new 
plan.  After  Mr.  Hay's  protest,  "  Mr.  Cleaveland,  for  himself  and  others, 
gave  notice  of  a  protest  against  the  resolutions  adopted  on  Thursday, 
abrogating  the  'Plan  of  Union;'"  and  then  "Mr.  Breckinridge  gave 
notice,  that  he  would  to-morrow  morning  offer  a  resolution  to  appoint  a 
cpmmittee,  to  consist  of  equal  numbers  from  the  majority  and  minority 
on  the  vote  to  cite  inferior  judicatories,  to  inquire  into  the  expediency  of 
a  voluntary  division  of  the  Presbyterian  Church."  This  last  notice  was 
followed  up  on  Saturday  morning,  May  27th,  by  a  motion  offered  by  Mr. 
Breckinridge,  <'  that  a  committee  of  ten  members,  of  whom  an  equal  num- 
ber shall  be  from  the  majority  and  minority,  be  appointed  on  the  state  of 
the  Church." 

Mr.  Preston  reminds  me,  that  up  to  a  certain  stage  of  these  proceed- 
ings, of  which  I  am  endeavouring  to  give  a  succinct  account,  there  was 
no  difference  of  opinion  as  to  wha^  must  be  the  result.  All  seem  to  have 
agreed  that  there  must  be  a  separation  between  the  two  jiarties;  that  it 
was  not  Christian-like  to  attempt  to  hold  together,  when  dissension  had 
become  so  violent  as  to  bring  scandal  upon  religion.  Mr.  Breckinridge's 
proposition  was  not  only  necessary,  but  most  Christian-like — he  was  but 
fulfilling  his  duty  to  his  Redeemer.  An  attempt  to  prevent  separation 
would  have  been  treason  to  the  cause  of  Him  who  has  said,  "  By  this 
shall  all  men  know  that  ye  are  my  disciples — that  ye  love  one  another." 
"  Dr.  Junkin  and  Mr.  Campbell,  from  the  committees  to  nominate  the 
committee  of  ten,  on  the  state  of  the  Church,  respectfully  reported  the 
following  nomination,  viz:  Mr.  Breckinridge,  Dr.  Alexander,  Dr.  Cuyler, 
Dr.  Witherspoon,  and  Mr.  Ewing,  on  the  part  of  the  majority;  and  Dr. 
McAuley,  Dr.  Beman,Dr.  Peters,  Mr.  Dickinson,  and  Mr.  Jesup,  on  the 
part  of  the  minority.  The  report  was  adopted,  &c."  It  is  not  necessary 
to  bring  evidence  to  prove  that  these  gentlemen  belonged  to  opposite 
sides. 

You  will  observe,  gentlemen,  that  at  this  time  none  of  the  difficulties 
since  discovered  were  suggested — they  have  all  been  after-thoughts. 
The  whole  difficulty  in  regard  to  the  Church  property  was  an  after- 
thought. All  then  were  agreed  that  division  was  expedient.  The  only 
reason  why  a  division  was  not  effected  was  one,  which,  according  to  the 
judgment  of  Solomon,  must  condemn  our  opponents.  The  difficulty  at 
this  time  was,  that  the  Old-school  were  determined  to  adhere  to  the  suc- 
cession. The  others  were  willing  to  give  it  up,  but  to  give  it  up  only  oa 
the  condition  that  neither  should  have  it,  that  it  should  be  destroyed. 
The  Old-school  insisted  that  the  property  which  they  were  to  keep — 
there  was  no  dispute  about  the  mere  division  of  the  property— should 
"  remain  the  property  of  the  body  retaining  the  name  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  Ame- 
rica"— the   Old-school   Assembly.     The   New-school  insisted   that   the 

45 


354  PRESBYTERIAN  CHURCH  CASE. 

same  property  should  "  be  transferred  and  belong  to  the  General  Assem- 
bly of  the  Presbyterian  Church  of  the  United  States  of  America,  thereby 
constituted," — in  short,  on  destroying  the  succession  altogether.  Here 
was  the  point  on  which  they  split.  It  is  true  that  in  the  course  of  the 
negociations,  the  New-school  proposed  that  the  subject  of  division  should 
be  first  sent  down  to  the  Presbyteries,  before  the  Assembly  acted  finally 
upon  it,  and  the  Old-school  were  unwilling  to  accede,  insisting  on  an 
immediate  division;  but  this  does  not  seem  to  have  been  so  great  a  diffi- 
culty as  that  rising  out  of  the  question  of  succession.  At  any  rate  the 
whole  plan  proposed  for  the  division  of  the  ,property,  which  had  origi- 
nated with  the  New-school,  was  adopted  by  them.  What  did  they  care 
for  the  nursery  of  the  Church?  What  did  they  care  for  Princeton  Semi- 
nary? Nothing.  They  disputed  about  the  name  only,  and  that  they 
called  an  unimportant  matter,  a  mere  meaningless  phrase.  While  the 
Old-school  are  contending  for  the  right  of  succession,  the  other  party  sa}^, 
that  they  assent  to  the  propositions  submitted,  "  with  a  trifling  alteration 
in  the  phraseology,  striking  out  the  words  "shall  remain  the  property 
of  the  body  retaining  the  name  of  the  General  Assembly  of  the  Presby- 
terian Church  in  the  United  States  of  America,"  and  inserting  the  words, 
"  shall  be  transferred  and  belong  to  the  General  Assembly  of  the  Presby- 
terian Church  of  the  United  States  of  America,  hereby  constituted." 
One  would  think  that  if  the  change  proposed  had  been  considered  so 
trifling  and  unimportant,  the  New-school  brethren  might  have  been  less 
eager  to  insist  upon  it.  But  no;  they  say  that  the  succession  must  be 
abandoned,  and  how  Mr.  Meredith  could  have  so  mistaken  their  mean- 
ing I  cannot  imagine.  They  wished  that  the  living  child  should  be 
divided  and  destroyed.  Yet  he  tells  you  that  the  New-school  cared 
nothing  for  property,  that  we  might  have  taken  that  and  welcome,  if  vv'e 
would  only  have  left  them  the  right  of  succession — that  here  was  the 
sole  difficulty.  That  the  parties  differed,  not  on  a  point  of  property  or 
honour,  but  on  a  point  of  faith.  Yet  the  object  of  the  New-school, 
plainly  avowed-,  was  to  annihilate  the  succession;  and  at  the  same  time 
they  call  the  change  of  phraseology  on  which  they  insist,  a  mere  "  trifling 
alteration."  The  parties  separate  on  a  mathematical  point.  One  wishes 
the  property  to  remain  to  them  as  the  General  Assembly,  the  other  that 
it  shall  be  transferred  to  them,  as  a  new  bod}'.  The  latter  are  willing  to 
relinquish  the  succession,  if  the  other  will  consent  to  do  the  same. 

Here  we  find  the  reports  of  both  portions  of  the  committee.  They 
were  agreed  in  all  cardinal  particulars,  as  we  men  of  the  world  would 
construe  them;  but  they  differed  in  regard  to  matters  which  the  parties 
themselves  deemed  cardinal.  These  reports,  {Vid.  ante,  p.  39,  et  seq.) 
are  accompanied  by  the  papers  which  passed  between  the  two  parts  of 
the  committee.  The  committee  of  the  majority  in  their  paper  No.  1, 
say,  "That  the  peace  and  prosperity  of  the  Presbyterian  Church  in  the 
United  Slates,  require  a  separation  of  the  portions  called  respectively  the 
Old  and  New-school  parties."  This  )7ou  will  perhaps  think  was  very 
strong  language,  but  it  is  not  so  strong  as  the  language  of  the  committee 
of.tlie  minority  on  the  same  subject.  They  say,  "Whereas,  the  expe- 
rience of  many  years  has  proved  that  this  body  is  too  large  to  answer  the 
purposes  contemplated  by  the  constitution,  and  there  appears  to  be  insu- 
perable obstacles  in  the  way  of  reducing  the  representation: 


MR.  INGERSOLL'S  ARGUMENT. 


355 


"  And  whereas,  in  the  extension  of  the  Church  over  so  great  a  terri- 
tory, embracing  such  a  variety  of  people,  difference  of  view  in  relation  to 
important  points  of  Church  pohcy  and  action,  as  well  as  theological 
opinion,  are  found  to  exist; 

"Now,  it  is  believed,  a  division  of  this  body  into  two  separate  bodies, 
which  shall  act  independently  of  each  other,  will  be  of  vital  importance 
to  the  best  interests  of  the  Redeemer's  kingdom." 

Could  these  gentlemen,  as  men  of  conscience,  throw  any  thing  in  the 
way  of  a  separation  ?  If  they  cast  down  but  a  pebble  to  obstruct  the 
plan  of  division,  they  had  forgotten,  at  least  for  the  moment,  the  duty  of 
yielding  obedience  to  the  dictates  of  conscience:  they  did  not  practice 
as  they  preached. 

(Here  the  jury  were  allowed  a  recess  of  ten  minutes.) 
■  You  will  be  good  enough  to  observe,  that  this  proposition  for  the  ap- 
pointment of  a  committee  to  devise  a  plan  of  separation,  followed  imme- 
diately on  the  heels  of  Mr.  Hay  and  Mr.  Cleveland's  notices  of  protest, 
and  was,  as  it  appears,  unanimously  concurred  in,  and  adopted  as  a  ban- 
ner of  peace  and  a  city  of  refuge,  at  a  moment  of  disaster  to  one  party, 
and  of  storni  to  all.  I  was  just  now  speaking  of  the  first  paper  of  the 
committee  of  the  minority,  in  which  they  agree  in  the  importance  of  a 
separation.  I  would  notice  here  an  inconsistency  in  the  final  report  of 
this  committee  to  the  house,  as  contrasted  with  the  language  of  the  sub- 
ordinate report,  or  paper  No.  1,  from  which  I  have  just  read,  which  is  a 
little  extraordinary.  In  the  latter,  they  agree  that  a  division  "  will  be  of 
vital  importance  to  the  best  interests  of  the  Redeemer's  kingdom  ;"  and, 
in  this  opinion,  they  had  jumped  to  the  same  conclusion  with  the  Old- 
school  committee,  though  without  any  influence  from  them.  But  mark 
how  different  the  language  of  this  protocol — for  the  parties  were  in  fact 
negotiating  a  treaty — from  that  of  the  subsequent  report  to  the  house,  in 
which  the  same  gentlemen  of  the  minority  say,  "  The  subscribers  had 
believed  that  no  such  imperious  necessity  for  a  division  of  the  Church 
existed,  as  some  of  their  brethren  supposed,  and  t'nt  the  consequences  of 
division  would  be  greatly  to  be  deprecated!"  How  can  we  reconcile 
these  two  conflicting  statements  coming  from  the  same  party,  and  appear- 
ing almost  within  the  limits  of  a  single  page?  When  speaking  to  the 
other  portion  of  the  committee,  they  volunteer  to  say,  that  a  division  is 
not  onl}'  to  be  deprecated,  but  "will  be  of  vital  importance  to  the  best 
interests  of  the  Redeemer's  kingdom;"  but  a  few  hours  afterwards,  in 
addressing  the  house,  they  declare,  that  they  "  had  believed  that  no  such 
imperious  necessity  for  a  division  of  the  Church  existed,  as  some  of  their 
brethren  supposed,  and  that  the  consequences  of  division  would  be  greatly 
to  he  deprecated."  Adding,  "  Such  necessity,  however,  being  urged  by 
many  of  our  brethren,  we  have  been  induced  to  yield  to  their  wishes," — 
most  accommodating  gentlemen! — "and  to  admit  the  expediency  of  a 
division,  provided  the  same  could  be  accomplished  in  an  amicable,  equi- 
table, and  proper  manner."  It  is  very  obvious  that  there  was  a  marked 
difference  between  the  two  parties  in  point  of  disposition.  Tlie  New- 
school  were  coy,  and  did  not  choose  to  be  won  without  being  wooed.  I 
wish  I  could  show  you  the  real  points  of  difference  between  them,  as  re- 
gards the  plan  of  division.  The  minority  committee  go  on  to  say, 
"  From  these  papers,  it  will  be  seen,  that  the  only  question  of  any  import- 


356  PRESBYTERIAN  CHURCH  CASE. 

ance,  upon  which  the  committee  differed,  was  that  proposed  to  be  sub- 
mitted to  the  decision  of  the  Assembly,  as  preliminary  to  any  action  upon 
the  details  of  either  plan.  Therefore,  believing  that  the  members  of  this 
Assembly  have  neither  a  constitutional  nor  moral  right  to  adopt  a  plan  for  a 
division  of  the  Church,  in  relation  to  which  they  are  entirely  uninstructed 
by  the  Presbyteries;  believing  that  the  course  proposed  by  their  brethren 
of  the  committee  to  be  entirely  inefficacious,  and  calculated  to  introduce 
confusion  and  discord  into  the  whole  Church,  and  instead  of  mitigating, 
to  enhance  the  evils  which  it  proposes  to  remove;  and  regarding  the  plan 
proposed  by  themselves,  with  the  modifications  thereof,  as  before  stated, 
as  presenting  in  general  the  only  safe,  certain,  and  constitutional  mode  of 
division,  the  subscribers  do  respectfully  present  the  same  to  the  Assem- 
bly for  their  adoption  or  rejection." 

The  New-school  think  that  this  question,  about  sending  the  plan  down 
to  the  Presbyteries,  is  the  onl}'^  material  point  of  difference  between  them- 
selves and  the  Old-school ;  but  mark  where  the  main  difference  lay,  ac- 
cording to  the  opinion  of  the  committee  of  the  majority  :  it  was  at  this 
very  point — the  succession.  They  were  determined  to  adhere  to  the 
Presbyterian  Church. 

Here  is  No.  10  of  the  propositions  of  the  minority:  it  contains  the 
offer  which  Mr.  Meredith  has  ridiculed  so  much  ;  but  mark  that  this 
comes  from  the  committee  of  the  New-school. 

Mr.  Ingersoll  here  read  the  proposition — Vid.  anie^p.  42. 

This,  I  say,  is  the  proposition  of  the  minority  ;  and  if  it  gives  the 
lion's  share  to  the  Old-school,  it  is  only  by  the  offer  of  the  inferior  ani- 
mal. What  say  the  majority  to  this  proposal?  They  agree  to  its  terms, 
so  far  as  regards  the  division  of  property,  offering  however  some  modifi- 
cations in  the  form  of  the  proposition.  The  minority  propose,  the  majo- 
rity accede,  and  then  comes  a  matter  of  considerable  importance.  The 
minority  reply,  "  We  assent  to  the  modification  of  No.  10,  by  No.  5  of 
the  propositions  submitted,  with  a  trifhng  alteration  in  the  phraseology," 
— Mark!  What  is  thi:,  trifling  alteration  ?  The  Old-school  wish  the  pro- 
perty which  it  is  agreed  they  shall  have,  to  remain  to  them:  they  wish 
to  inherit  the  succession.  The  New-school,  to  destroy  the  succession, 
create  two  new  bodies,  and  transjer  to  each  its  proportion  of  the  funds. 
The  Old-school,  I  say,  wished  to  keep  up  the  succession  in  their  own 
body:  this  was  the  rock  on  which  their  Church  was  to  be  built — the 
foundation  which  was  to  support  it  till  the  end  of  time,  a  fit  emblem  of 
St.  Peter.  Tracing  back  their  Church  to  the  days  of  the  Apostles,  they 
held  to  it  with  a  tenacity  which  was  unyielding:  their  veneration  for  it 
knew  no  bounds.  The  others  considered  the  words  framed  to  destroy  the 
succession,  as  merely  "  a  trifling  alteration  in  the  phraseology."  That 
we  should  take  the  Seminary,  they  agreed:  it  was  no  child  of  theirs: 
they  did  not  wish  to  have  any  thing  to  do  with  it:  they  were  satisfied 
with  half  of  all  the  property  besides  the  Seminary  funds.  Indeed,  they 
say  that  their  only  difficulty  is  in  regard  not  to  the  effect,  but  to  the  man- 
ner of  division.  In  answer  to  all  this,  the  committee  of  the  majority 
simply  refer  to  their  own  preceding  papers,  as  containing  their  final  pro- 
positions. They  say,  "  We  won't  part  with  our  General  Assembly:  we 
must  keep  up  the  succession  and  the  name.  This  is  not  a  question  of  the 
mere  destruction  and  re-creation  of  a  corporate  bod}^,  nor  of  the  mere 


MR.  INGERSOLL'S  ARGUMENT. 


357 


renouncement  and  re-adoption  of  a  name:  these  things  are  but  the  type 
of  that  for  which  we  are  contending.  What  you  consider  trifling,  we 
think  of  great  magnitude.  You  say  it  is  but  form — we,  that  it  is  sub- 
stance: you  dispute  about  words — we  about  things. "  The  minority  re- 
turn an  answer — their  No.  4,  the  majority  respond,  and  here  the  nego- 
tiation terminates. 

"The  committee  of  the  majority,  &c.  in  answer  to  No.  4,  &c.  reply, 
that  understanding  from  the  verbal  explanations  of  the  committee  of  the 
minority,  that  the  said  committee  would  not  consider  either  side  bound 
by  the  vote  of  the  Assembly,  if  it  were  against  their  views  and  wishes 
respectively,  on  the  point  proposed  to  be  submitted  to  its  decision  in  said 
paper,  to  carry  out  in  good  faith  a  scheme  which,  in  that  case,  could  not 
be  approved  by  them  ;  and,  under  such  circumstances,  a  voluntary  sepa- 
ration being  manifestly  impossible,  this  committee  consider  No.  4  of  the 
minority,  as  virtually  a  waver  of  the  whole  subject." 

You  perceive,  gentlemen,  that  now  the  last  hope  of  peace  was  blasted. 
The  two  parties  differ  in  their  estimation  of  the  main  points  of  difficulty; 
but  it  is  very  obvious  that  one  side  were  determined  to  adhere  to  the  suc- 
cession, and  that  the  other  were  willing  to  abandon  it,  and  build  up  a 
new  organization.  As  the  other  proceedings  had  been  merely  suspended 
during  these  negotiations,  the  moment  that  the  suspension  seemed  no 
longer  desirable,  and  so  it  became  after  the  committee  had  reported  and 
been  discharged,  a  resolution  was  offered,  probably  by  the  same  gentle- 
man who  had  proposed  the  appointment  of  the  committee,  "  That  the 
Synod  of  the  Western  Reserve  is  not  a  part  of  the  Presbyterian  Church." 
How  obvious  was  the  propriety  of  all  these  proceedings.  First,  the 
"  Plan  of  Union"  was  abrogated;  then  the  measure  of  citation  was  urged, 
but  it  was  carried  by  so  small  a  majority,  and  the  vote  was  so  immediately 
followed  by  protest  upon  protest,  that  it  might  just  as  well  have  been 
lost;  then  a  scheme  for  an  amicable  division  of  the  Church  was  proposed, 
but  entirely  failed  ;  and  it  was  not  until  every  other  expedient  had  been 
tried,  and  had  proved  ineffectual,  until  the  measure  could  no  longer  be 
avoided,  that  as  a  necessary  though  very  disagreeable  remedy — a  dernier 
resort,  it  was  declared,  that  in  consequence  of  the  abrogation  of  the 
"  Plan  of  Union,"  the  Synod  of  the  Western  Reserve  was  no  longer  a 
part  of  the  Church.  This  resolution  was  offered  on  Tuesday  morning. 
May  30th,  immediately  after  the  report  of  the  committee  had  been  re- 
ceived and  laid  on  the  table  ;  and  after  debate,  the  Assembly  adjourned 
until  the  afternoon,  when  the  subject  was  again  debated.  The  discussion 
was  resumed  on  Wednesday,  occupied  both  the  morning  and  afternoon  of 
that  day,  and  a  part  of  Thursday  morning,  when  the  question  was  decided 
by  a  vote  of  one  hundred  and  thirty-two  to  one  hundred  and  five.  You 
must  remember,  gentlemen,  that  every  thing  had  been  tried  by  the  Old- 
school  before  this  time  ;  and  that  every  offer  had  been  refused,  every  effort 
at  compromise  and  an  amicable  adjustment  of  the  difficulty  rejected,  by 
our  opponents.  The  Synod  of  the  Western  Reserve  was  thus  decided  to 
be  no  longer  a  part  of  the  Presbyterian  Church.  It  is  proper  that  you 
should  bear  in  mind  the  very  language  of  this  resolution,  as  here  is  the 
point  on  which  these  two  parties  radically  differ.  It  was,  "Resolved, 
That  by  the  operation  of  the  abrogation  of  the  Plan  of  Union  of  1801,  the 


358  PRESBYTERIAN  CHURCH  CASE. 

Synod  of  the  Western  Reserve  is.  and  is  hereby  declared  to  be,  no  longer 
a  part  of  the  Presbyterian  Church  in  the  United  States  of  America." 

We  have  shown  that  the  Assembly  has  authority  to  control  Synods — 
a  greater  power  than  was  here  exercised;  for  this  was  merely  a  declara- 
tive act,  merely  an  announcement  of  the  consequence  of  the  precedent 
measure — the  abrogation  of  the  "Plan  of  Union."  It  followed  from  that 
measure  as  a  corollary  from  a  proposition:  it  was  nothing  but  a  declara- 
tive resolution.     There  that  matter  rested. 

On  Thursday  afternoon,  "the  Assembly  proceeded  to  the  order  of  the 
day,  viz:  the  election  of  Trustees  of  the  General  Assembly. 

"  A  motion  was  made  that  this  election  be  by  ballot,  and  decided  in 
the  affirmative,  by  yeas  6S,  nays  6. 

"  Before  the  vote  was  announced,  a  motion  was  made  directing  the  clerk 
to  call  the  names  of  members  of  the  Western  Reserve  Synod,  which  mo- 
tion the  Moderator  decided  to  be  out  of  order;  an  appeal  was  taken  from 
the  Moderator,  and  the  house  sustained  his  decision. 

"  Mr.  Jesup  presented  a  written  demand  that  the  members  of  the  Wes- 
tern Reserve  Synod  be  admitted  to  vote  in  the  election  now  in  progress, 
and  protesting  against  the  rejection  of  their  votes."      Vide.  tRnte,  p.  45. 

On  Friday  morning  another  protest  was  entered  agaiiist  the  abrogation 
of  the  "  Plan  of  Union,"  and  was  referred  to  a  committee  to  be  answered. 
The  plan  had  been  abrogated  May  23d,  and  this  was  June  2d.  On 
Saturday,  June  3d,  Mr.  Jesup  ofierd  a  protest  from  the  members  of  the 
Western  Reserve  Synod  against  the  resolution  declaring  that  Synod  no 
longer  a  part  of  the  Church,  and  Dr.  Beman  one,  signed  by  himself  and 
others,  against  the  same  resolution,  as  also  against  that  providing  for  the 
citation  of  inferior  judicatories;  both  which  were  read  and  referred.  As 
these  protests  began  to  accumulate,  we  find  that  "  resolutions  were  offered 
by  Mr.  Breckinridge  respecting  the  connexion  of  the  Synods  of  Utica, 
Geneva,  and  Genesee,  with  the  Presbyterian  Church  of  the  United 
States."  These  resolutions  set  forth  the  nature  of  the  proceeding  more 
at  large  than  the  first  had  done,  and  a  great  part  of  them  were  applicable 
to  the  Synod  of  the  Western  Reserve  as  well  as  to  the  three  others.  "  A  di- 
vision of  the  question  was  called  for  by  Mr.  Jesup;  and  after  debate,  it 
was  moved  by  Mr.  Jesup  to  postpone  the  resolutions,  with  a  view  of  in- 
troducing the  following  substitute,  viz."  Now,  gentlemen,  I  beg  your 
particular  attention  while  I  show  you  what  this  substitute  was.  Remem- 
ber, too,  that  it  came  fi"om  a  highly  respectable  and  a  leading  member  of 
the  New-school  party,  and  that  it  was  offered  when  Mr.  Breckinridge, 
with  reluctance,  and  after  every  thing  else  had  been  unsuccessfully  tried, 
had  presented,  as  a  last  resort,  his  resolutions  against  the  three  New  York 
Synods.  It  was  offered  by  the  minority,  the  very  party  by  whose  vote 
the  measure  of  citation  had  been  virtually  rejected,  and  against  which 
measure  Dr.  Beman  had  this  very  morning  entered  a  protest,  signed  by 
himself  and  upwards  of  a  hundred  of  his  New-school  friends.  The  majo- 
rity had  desired  a  separation  of  the  two  parties:  the  minority  would  not 
permit  it.  Tiiey  desired  to  cite  certain  inferior  judicatories:  the  mino- 
rity would  not  let  them.  They  were  thus  driven  to  relinquish  every 
measure  tending  to  harmony  and  peace,  and  were  finally  obliged  to  re- 
sort to  the  declarative  resolutions  whereby  four  Synods  were  disowned. 


MR.  INGERSOLL'S  ARGUMENT.  359 

But  this  roused  the  minority,  and  they  attempt  to  substitute  the  very 
measure  which  at  first  they  had  utterly  opposed. 

Here  Mr.  IngersoU  read  Mr.  Jesup's  substitute. —  Vid.  ante,  p,  45. 

This  is  in  substance  the  same  proposition  before  made  by  the  Old- 
school.  Theirs  it  is  true  provided  for  the  citation  of  any  inferior  judica- 
tories that  might  be  charged  by  common  fame  with  irregularities,  while 
this  was  confined  to  the  Synods  of  Utica,  Geneva,  and  Genesee;  but 
these  were  the  very  ones  of  the  exclusion  of  which  our  opponents  now 
complain,  and  which  with  the  Synod  of  the  Western  Reserve  would  un- 
doubtedly have  been  the  first,  if  not  the  only  ones  cited,  under  the  reso- 
lution against  which  the  New-school  had  before  protested — which  had  in 
effect,  been  rejected  by  their  votes. 

The  next  day  of  the  session,  Monday,  Mr.  Jesup's  motion  to  postpone 
was  thoroughly  discussed,  and  in  the  afternoon,  "  the  previous  question 
was  demanded,  and  decided  in  the  affirmative;  and  the  motion  to  post- 
pone being  cut  off  by  the  previous  question," — you  know  that  such  is 
always  the  effect  of  that  question—"  the  resolutions  were  divided,  and 
the  first  was  adopted  by  yeas  and  nays,  as  follows,  viz." 

Here  Mr.  IngersoU  read  the  first  resolution. —  Vid.  ante.  p.  46. 

I  did  not  suppose  that  after  our  opponents  had  taken  the  position  which 
they  did  in  tlie  course  of  debate  on  these  resolutions  and  in  the  subse- 
quent proceedings,  any  question  would  have  been  made  whether  these 
Synods  and  that  of  the  Western  Reserve  were  really  formed  by  the  ope- 
ration of  the  "  Plan  of  Union."  It  was  reserved  for  Mr.  Meredith  to 
suggest  a  doubt  as  to  this  point.  Here  the  fact  is  distinctly  admitted: 
neither  the  protests  nor  replies  present  such  an  issue.  I  will  now  read 
the  three  remaining  propositions,  which  were  carried  the  same  afternoon: 
they  are  of  great  importance  to  the  equity  of  this  case.  They  passed  by 
a  vote  of  one  hundred  and  thirteen  to  sixty. 

Mr.  IngersoU  then  read  the  last  three  resolutions.  —  Vid.  ante.  p.  46. 

Now,  gentlemen,  is  there  not  extreme  churlishness  on  the  part  of  those 
who  refuse  to  be  bound  by  this  act?  They  who  denied  to  the  majority, 
when  the  question  of  separation  was  under  debate,  the  privilege  of  enjoy- 
ing the  succession,  and  instead  thereof,  proposed  that  all  power  should  be 
pumped  out  of  the  old  organization,  only  to  be  pumped  back  into  two 
new  bodies;  who  were  willing  to  throw  away  entirely  all  the  benefits  re- 
presented by  the  name  and  succession;  these  men  will  not  agree  to  break 
up  their  subordinate  organizations,  and  relinquish  the  Synodical  names 
under  which  they  now  hold.  They  will  separate  from  us  altogether,  and 
destroy  the  identity  of  the  Church,  but  will  not  permit  their  ecclesiasti- 
cal connexion  to  be  dissolved,  though  but  for  a  moment,  though  they  are 
instantly  to  be  restored,  and  though  the  measure  is  intended  to  prom.ote 
the  peace  and  unity  of  the  Church.  We  say  that  the  four  disowned  Sy- 
nods, as  now  constituted  of  heterogeneous  materials,  are  not  entitled  to 
representation  in  the  General  Assembly;  but  tliat  their  members,  at  least 
so  many  of  them  as  are  Presbyterians,  ought  not  to  remain  separate;  that 
they  should  apply  for  admission  to  those  judicatories  to  which  by  the 
act  they  were  transferred.  They  have  not  been  cut  off;  they  have  not 
been  disrobed.  Who  has  thus  suffered?  Who  has  been  shut  out  from 
the  General  Assembly?  No  man  that  represented  a  proper  constituency. 
Not  a  single  minister  has  been  debarred  his  right  of  sitting  in  Presbytery. 


350  PRESBYTERIAN  CHURCH  CASE. 

The  only  churches  which  have  been  cut  oflf  are  those  Congregational 
churches,  of  the  existence  of  which  you  have  ample  proof.  The  Gene- 
ral Assembly  will  not  recognise  or  receive  the  representatives  of  such 
churches;  but  what  Presbyterian  Church  has  been  exscinded?  Where 
have  the  acts  of  1837  operated  severely  or  unjustly?  We  are  told  that 
the  members  of  the  four  Synods  have  been  excluded.  We  deny  that 
they  have  been.  We  disowned  the  Synods — dissolved  them,  as  before 
we  had  dissolved  the  Synods  of  Delaware  and  Chesapeake,  but  the  Sy- 
nods only  were  disowned,  and  not  their  component  parts,  unless  they  are 
Congregationalists.  The  delegates  from  these  Synods  came  to  us  under 
a  false  name;  we  found  that  they  represented  an  improper  constituency; 
but  let  them  join  the  nearest  Presbyteries  which  are  properly  organized, 
and  then  when  they  are  sent  we  shall  gladly  receive  them.  They  may 
come  back  to  us  whenever  they  choose.  The  mere  destruction  of  a  name 
does  not  destroy  the  thing.  As  members  of  the  Synod  of  Albany,  or  of 
the  Synod  of  New  Jersey,  their  rights  would  be  just  the  same.  1  want 
you  to  understand  that  there  is  no  necessary  correspondence  between  the 
limits  of  a  state  and  of  a  Synod,  or  between  the  names  of  the  one  and  the 
other.  This  matter  is  regulated  entirely  by  convenience.  The  Presby- 
tery of  Montrose  in  Pennsylvania  belongs  to  the  Synod  of  New  Jersey. 
The  resolutions  of  1837  do  not  destroy  the  ecclesiastical  privileges  of  a 
single  man.  Any  one  entitled  to  Presbyterian  rights  may  enjoy  them 
now  as  fully  as  ever  he  did.  But  those  who  are  not  Presbyterians — the 
Congregationalists,  unconstitutionally  admitted  to  partake  of  our  privi- 
leges, are  excluded.  The  rights  of  the  members  of  the  disowned  Synods 
have  not  been  affected:  only  the  name  and  form  under  which  they  are  to 
exercise  those  rights  have  been  changed.  I  say  then  that  their  conduct 
is  at  least  churlish;  and  if  the  acts  of  1837  have  destroyed  harmony,  the 
fault  is  evidently  theirs. 

These  acts  were  passed  as  I  have  shown — the  one  by  a  vote  of  one 
hundred  and  fifteen  to  eighty-eight;  the  other  by  a  vote  of  one  hundred  and 
thirteen  to  sixty.  They  were  followed  by  a  protest  read  and  referred  as 
before.  The  resolutions  touching  the  Third  Presbytery  of  Philadelphia, 
which  soon  followed  I  do  not  care  about,  and  shall  therefore  pass  them, 
by  in  silence. 

1  have  thus  gone  over,  with  some  minuteness,  the  whole  of  the  im- 
pugned proceedings  of  the  Assembly  of  1837,  and  have  shown  that  they 
consisted  of  three  cardinal  measures.  First,  the  abrogation  of  the  "  Plan 
of  Union;"  Second,  a  declaration  of  the  consequences  of  that  act  in  re- 
gard to  the  Synod  of  the  Western  Reserve;  and  Third,  a  similar  declara- 
tion in  regard  to  three  other  Synods.  But  between  the  first  of  these  acts 
and  the  others,  there  was  an  intermediate  space  of  time,  which  was  filled 
up  by  endeavours  to  effect  a  compromise  and  amicable  division,  and  to 
bring  up  the  accused  Synods  to  the  bar  of  the  General  Assembly  that 
they  might  be  tried.  But  both  these  measures  were  finally  abandoned 
by  the  majority,  because  they  were  unacceptable  to  the  minority,  and  it 
was  found  impossible  to  carry  them  out. 

I  am  now  about  to  put  a  question  to  you  which  directly  refers  te  a 
matter  of  a  more  comprehensive  kind.  Can  a  Christian  body,  organized 
to  accomplish  a  certain  end,  meet  in  harmony,  when  each  of  its  members 
is  determined  upon  a  diflferent  means  of  effecting  the  object  in  view?    To 


MR.  INGERSOLL'S  ARGUMENT.  35  j 

give  a  popular  example :  From  one  extremity  of  our  land  to  the  other,  the 
people  are  divided  between  abolition  and  colonization,  though  the  object  of 
both  parties  is  the  same — both  vie  in  their  desires  lo  emancipate  the  negro 
race  from  slavery,  acting  however  by  different  means.  The  zealous  colo- 
nizationist  and  the  uncompromising  abolitionist  can  no  more  meet  to- 
gether in  harmony,  than  the  abolitionist  and  the  slave-holder.  They 
cannot  meet  on  common  ground.  Well,  these  brethren  of  the  New- 
school  have  admitted  that  they  do  differ  from  us  "in  relation  to  impor- 
tant points  of  church  policy  and  action,  as  well  as  theological  opinon." 
Perhaps  they  do  not  understand  some  of  the  articles  of  the  Presbyterian 
faith  as  we  do;  or  perhaps  they  reject  some  altogether  which  we  receive. 
At  any  rate  the  Old-school  say  that  there  are  irreconcilable  differences; 
and  you  must  remember,  gentlemen,  that  in  matters  of  opinion,  a  belief 
"that  there  are  differences  is  often  equivalent,  at  least  in  effect,  to  real 
discrepancy.  Where  persons  are  disagreed  upon  points  of  conscience, 
their  roads  to  salvation  are  different  and  they  must  part.  If  for  example 
one  portion  of  a  sect  advocate  perpetual  change,  and  the  other  a  strict  ad- 
herence to  established  forms  and  doctrines,  they  cannot  live  together  in 
harmony.  We  say  that  religion  is  not  a  thing  to  be  constantly  tinkered 
and  mended.  Our  effort  is  to  get  back  to  the  faith  of  our  fathers,  which 
needs  no  improvement — to  get  back  to  the  faith  first  delivered  to  the 
saints.  Could  the  apostle  Peter  have  instructed  us  all,  we  should  have 
received  the  water  of  life  from  the  fountain  head.  But  now  when  the 
stream  has  flown  down  some  two  thousand  years  to  us,  our  only  effort  is 
to  find  the  channel  of  pure  and  limpid  water  coming  from  the  true  source. 
One  of  these  parties  contends  for  a  changeless  uniformity  in  religious 
opinion;  the  other  for  unceasing  change.  Is  it  not  best  then  that  they 
should  keep  apart?  There  is  a  wide  separation  in  feeling,  principle,  and 
doctrine:  they  cannot  get  along  together.  And  besides  these  differences, 
there  is  another,  the  evidence  of  which  is  before  you — a  difference  in 
point  of  church  government,  which  has  existed  since  the  year  1801.  The 
representatives  from  the  four  disowned  Synods  to  the  Assembly  of  1837, 
came  from  a  constituency  composed  in  part  of  Congregationalists.  The 
Congregational  form  of  government  is  a  pure  democracy,  which  may 
be  proper  enough  where  all  can  unite  without  disorder,  and  without  strife, 
though  acknowledging  no  head — no  superior.  Congregationalists  are  not 
united  except  in  councils,  which  can  pass  no  decree  obligatory  upon  their 
members.  The  Presbyterian  form  is  republican — a  representative,  as 
distinguished  from  a  pure  democracy.  But  besides  these  differences  in 
point  of  doctrine  and  form  of  government,  there  are  others.  Is  it  decent 
that  men  who  differ  so  widely  and  essentially  in  feeling,  and  who  are 
continually  engaged  in  strife,  should  remain  together?  What  stronger 
evidence  can  you  have  of  this  discordancy  of  feeling  than  the  proceeding 
in  which  we  are  now  engaged — the  present  suit?  And  even  this  manner 
of  public  strife,  which  is  now  consummated  into  law  suits  commenced  at 
a  very  early  day — in  1837.  It  seems  that  immediately  after  the  disowing 
acts,  an  intimation  was  given  that  these  legal  proceeding  were  to  be  insti- 
tuted, and  indeed  then  our  opponents  took  the  first  step  towards  referring 
the  dispute  to  a  temporal  tribunal.  I  refer  for  the  evidence  of  this  lo 
page  467  of  the  Minutes. 

46 


3(32  FRESBYTEKIAN  CHURCH  CASE. 

Here  Mr.  IngersoU  read  certain  resolutions,  passed  by  the  Assembly, 
June  7th,  1837. —  Vid.  ante,  p.  47. 

These  resolutions,  I  say,  resulted  from  a  plain  intimation  given  by  our 
opponents,  that  they  intended  to  carry  the  dispute  out  of  the  religious 
assembly,  with  the  decrees  of  which  they  were  not  satisfied;  that  they 
would  appeal  from  the  spiritual  to  the  civil  power,  and  commit  their 
cause  to  the  protection  of  an  arm  of  flesh;  that  they  would  refer  the 
controversy  to  the  decision  of  a  court  of  justice  and  the  laws  of  the  land. 
That  first  act,  with  reference  to  which  the  Assembly  passed  the  series  of 
resolutions  which  I  have  just  read,  was  but  a  prelude  to  all  this  course  of 
litigation.  And  I  wish  here  to  correct  an  error  which  has  been  widely 
promulgated;  that  we  have  come  into  court  voluntarily,  that  this  is  alto- 
gether an  amicable  proceeding.  Not  at  all.  That  is  an  utter  mistake. 
From  the  first  intimation  given  to  us  of  the  intention  of  our  opponents, 
we  have  eschewed  and  deprecated  a  resort  to  this  tribunal.  The  present 
suit  is  solely  of  the  seeking  of  the  New-school  party.  However  willing 
we  may  be  to  abide  the  result  of  their  proceedings,  they  have  been  insti- 
tuted against  us,  as  we  believe,  unjustly,  and  there  has  been,  on  our  part, 
no  voluntary  submission,  no  amicable  arrangement.  We  have  come  into 
court  because  we  were  called  by  the  ministers  of  the  law.  Unless  we  had 
been  called,  we  should  have  had  nothing  to  do  with  such  proceedings. 
They  must  perpetuate  our  controversy:  they  make  our  differences  matter 
of  record:  they  must  forever  be  a  subject  of  keen  regret  to  the  true  dis- 
ciples of  Christ.  Nothing  so  widely  separates  men  and  brethren — sepa- 
rates them  so  hopelessly,  as  a  law  suit,  where  feeling  and  principle  are 
involved.  Where  property  alone  is  concerned,  reconciliation  may  ensue; 
but  let  parties  such  as  these,  bring  a  spiritual  controversy  into  a  court  of 
justice;  let  them  indulge  as  these  have  in  mutual  reproaches  and  recrimi- 
nations, and  between  them  is  a  great  gulf  fixed,  which  neither  can  over- 
come. The  gentlemen  on  the  other  side  have  resorted  to  the  law:  it  is 
their  own  plan,  their  own  wish.  The  seeds  of  litigation  the}'^  have  volun- 
tarily scattered,  they  have  purposely  broad-cast  upon  the  soil.  You  remem- 
ber Mr.  Brown  who  was  examined  here.  Undoubtedly  he  meant  to  tell 
the  truth,  yet  he  said  that  he  had  brought  but  one  suit;  and  when  asked  if 
he  had  not  brought  five,  as  the  docket  showed  that  he  had,  he  answered 
that  he  did  not  know,  that  he  had  left  that  matter  entirely  to  his  counsel. 
He  recks  not  of  the  extent  to  which  the  litigation  is  carried,  so  that  it 
goes  far  enough:  he  leaves  the  matter  in  the  hands  of  his  counsel:  they 
are  to  conduct  it  as  they  conduct  any  mere  secular  battle.  Here  are  Mr. 
Squier,  Mr.  Brown,  and  Mr.  Hay,  each  of  whom — and  I  suppose  each  in 
the  same  reckless  way — has  commenced  five  suits  against  diflferent  indi- 
viduals— in  all  fifteen  at  the  very  least.  And  we  ask,  why  did  they  not 
pursue  these  actions  after  they  had  been  commenced?  They  would  have 
decided  the  matter  just  as  well  as  the  present  suit.  Why  have  they  insti- 
tuted this  new  action,  intended  to  sweep  away  our  trustees  and  our  General 
Assembly,  to  send  them  all  by  the  board.  If  they  had  not  preferred  the 
public  scandal  of  such  a  proceeding  as  this,  they  would  not  have  aban- 
doned the  other  suits,  which  would  have  had  the  appearance  of  involving 
individuals  only.  Why  should  they  carry  out  alone  a  proceeding  so  much 
worse  than  all  the  rest?     It  has  been  decided  that  the  refusing  to  allow  a 


MR.  INGERSOLL'S  ARGUMENT.  353 

qualified  member  to  vote  in  a  Church  election  is  a  civil  offence,  and  that 
the  injured  party  may  sustain  a  suit  for  the  wrong.  They  might  thus 
have  tried  the  whole  question;  but  they  have  chosen  more  publicly  to 
cast  reproach  upon  us — and  I  say  that  this  proceeding  is  a  reproach  upon 
Christianity  itself 

Not  only  so,  but  some  of  the  other  party  have  used  phrases,  which  are 
in  evidence,  showing  clearly  that  their  view  of  this  matter  was  the  same 
that  I  have  imputed  to  them.  You  have  heard  that  in  the  meeting  for 
consultation,  in  which  the  plans  of  the  New-school  were  concerted,  one 
gentleman  declared  in  allusion  to  one  of  the  greatest  of  all  belligerents, 
'  who  kindled  the  flame  of  civil  war  in  his  own  country,  "We  have  passed 
the  Rubicon."  "  If  I  stop  here" — reasoned  Cgesar  as  he  paused  upon  the 
borders  of  that  stream — "  If  I  stop  here,  I  sacrifice  myself;  if  I  proceed, 
1  destroy  my  country" — and  he  passed  over.  They  too  when  they  had 
determined  on  the  measure,  which  I  fear  does  not  yet  approach  its  con- 
summation, had  crossed  the  Rubicon.  The  die  was  cast.  And  against 
them  this  matter  will  stand  recorded,  through  the  duration  of  ages.  The 
separation  must  now  last — last  for  the  lives  of  all  of  us — our  children,  in 
their  lives,  shall  not  see  it  ended.  Their  first  act  has  been  to  discard  the 
time-honoured  father  of  the  Church,  with  those  of  his  associates  most  of- 
fensive to  themselves.  The  wounds  thus  inflicted  can  never  be  healed. 
Worst  of  all,  that  which  our  opponents  have  done,  has  been  done  against 
the  wishes,  the  interests,  and  the  best  hopes  of  a  large,  a  very  large  ma- 
jority of  the  Presbyterian  Church,  and  especially  of  a  vast  majority  of 
Presbyterians  here  in  Pennsylvania.  Apply  any  test  that  you  please,  and 
see  if  we  are  not  the  majority.  Is  it  the  test  of  numbers  in  the  Assem- 
bly of  1838?  The  result  is  obvious.  Is  it  that  of  the  Assembly  of  1837? 
It  is  too  obvious  to  be  pointed  out.  If  on  their  part  a  hundred  ministers 
have  been  cut  off,  there  are  a  thousand  opposed  to  these  proceedings.  If 
a  thousand  communicants,  approve,  tens  of  thousands  condemn  the  policy 
of  the  New-school  brethren.  The  only  true  rule  either  in  Church  or 
State  is,  that  the  majority  must  of  necessity  govern.  You  find  this  prin- 
ciple laid  down  in  the  Form  of  Government,  in  a  note  to  Chap.  XII, 

"  The  radical  principles  of  presbyterian  church  government  and  dis- 
cipline are; — that  the  several  different  congregations  of  believers,  taken 
collectively  constitute  one  church  of  Christ,  called  emphatically  the 
church; — that  a  larger  portion  of  the  church,  or  a  representation  of  it, 
should  govern  a  smaller,  or  determine  matters  of  controversy  which  arise 
therein; — that,  in  like  manner,  a  representation  of  the  whole  should 
govern  and  determine  in  regard  to  every  part  and  to  all  the  parts  united, 
that  is,  that  a  majority  shall  govern:  And  consequently,  that  appeals  may 
be  carried  from  lower  to  higher  judicatories,  till  they  be  finally  decided 
by  the  collected  wisdom  and  united  voice  of  the  ivhole  church.  For 
these  principles  and  this  procedure,  the  example  of  the  apostles  and  the 
practice  of  the  primitive  church  is  considered  as  authority.  See  Acts 
XV,  1,  2,  4,  6,  and  from  the  2d  to  the  29th  verses;  also  Acts  xvi.  14,  and 
the  proofs  adduced  under  the  three  last  chapters." 

When  the  majority  decide  any  matter,  it  must  be  conclusively  settled: 
until  then  it  will  be  always  open.  Suppose  that  our  opponents  succeed 
in  this  cause,  the  shadow  of  the  majority  must  perpetually  haunt  them, 
and  its  substance  must  finally  defeat  them.     Let  them  succeed  here;  let 


364  PRESBYTERIAN  CHURCH  CASE. 

them  kindle  the  fires  of  litigation  in  every  Synod,  every  Presbytery,  and 
every  Church  in  the  land,  though  they  have  come  resolved  to  exert  the 
power  of  rebellion  to  the  uttermost,  they  must  at  last  be  overcome  if 
they  have  not  numbers  on  tlieir  side;  they  must  yield  to  the  majority; 
they  will  accomplish  nothing,  but  the  bringing  of  destruction  on  them- 
selves, and  of  scandal  on  Presbyterianism. 

This  doctrine  in  regard  to  the  powers  of  a  majority  is  distinctly  laid 
down  in  the  case  of  St.  Mary^s  Church,  7  Serg.  and  Rawle,  to  which 
I  have  already  referred,  pages  538,  543-4.  In  that  case  each  of  the 
judges  gave  a  separate  opinion,  and  all  agreed  upon  this  point.  To  it  as 
a  touch-stone  every  such  difficulty  must  sooner  or  later  come.  Here  the 
majority  must  at  last  conquer,  must  at  last  govern.  In  the  case  of  Field 
V.  Field,  9  Wendell,  394,  the  same  doctrine  is  established,  and  various 
authorities  cited.  It  is  there  declared  to  be  the  unequivocal  doctrine  of 
the  common  law,  that  the  majority  must  always  rule.  This  principle 
runs  through  every  part  of  the  case.  The  Quakers,  indeed,  do  not  call 
for  the  ayes  and  noes  upon  any  question,  and  thus  avoid  all  danger  of  an 
"  Aye!"  like  that  which  Dr.  Hill  has  told  us  was  such  a  scandal — was  so 
indecently  and  offensively  loud.  To  avoid  this  scandal  it  is  the  business  of 
their  clerk  to  gather  what  he  perceives  to  be  the  sense  of  the  meeting, 
and  put  it  on  record.  Even  if  our  opponents  gain  a  temporary  advan- 
tage, it  must  be  short  lived.  With  all  their  artifices,  and  appeals  to  pre- 
judice, their  triumph  must  come  to  an  end.  All  of  them  will  regret 
schemes  so  disastrous  to  themselves;  they  must  inevitably  feel,  if  the  fact 
be  so,  that  they  are  in  the  minority.  In  our  government,  and  among  our 
people,  numbers  will  ultimately  prevail,  and  the  sooner  the  minority  sub- 
mit to  the  majority  the  better. 

Were  the  exscinding  resolutions  of  1837  the  violation  of  a  contract,  or 
an  interference  with  the  rights  of  property,  or  a  condemnation  without  a 
hearing  ?  These  points  I  shall  now  proceed  to  examine,  though  the  first 
I  have  anticipated.  I  have  before  asked,  who  were  the  parties  to  this 
pretended  contract;  but  now  I  beg  leave  to  put  the  same  question  again. 
We  find,  on  referring  to  the  Assembly's  Digest,  page  297 — Vid.  ante, 
p.  48 — how  the  "  Plan  of  Union"  was  adopted. 

"  The  report  of  the  committee  appointed  to  consider  and  digest  a  plan 
of  government  for  the  churches  in  the  new  settlements,  was  taken  up 
and  considered ;  and  after  mature  deliberation  on  the  same,  approved,  as 
follows: 

"  Regulations  adopted  by  the  General  Assembly" — You  will  observe 
what  is  a  little  curious,  that  this  plan  is  called,  in  the  act  itself,  a  system 
of  regulations — no  other  name  is  given — "  Regulations  adopted  by  the 
General  Assembly  of  the  Presbyterian  Church  in  America,  and  by  the 
General  Association  of  the  State  of  Connecticut,  (provided  said  Associa- 
tion agree  to  them,)  with  a  view  to  prevent  alienation  and  promote  union 
and  harmony,  in  those  new  settlements,  which  are  composed  of  inhabit- 
ants from  these  bodies." 

I  ask,  then,  who  were  the  parties  to  this  contract,  if  it  be  one  ?  It  is 
signed  by  nobody,  nor  could  it  be  signed  but  by  the  Moderator,  or  clerk. 
We  find  that  it  was,  "  On  motion  Resolved,  that  an  attested  copy  of  the 
above  plan  be  made  by  the  Stated  Clerk,  and  put  into  the  hands  of  the 
delegates  of  this  Assembly  to  the  General  Association,  to  be  by  them  laid 


MR.  INGERSOLL'S  ARGUMENT.  355 

before  that  body  for  their  consideration;" — here  was  no  such  thing  as  a 
contract — "and  that  if  it  should  be  approved  by  them,  it  go  into  imme- 
diate operation."  It  is  a  system  of  regulations — mere  regulations;  and 
it  would  be  just  the  same — no  more  and  no  less — if  intended  for  mis- 
sionaries in  foreign  lands — in  Ceylon,  or  the  Sandwich  Islands.  It  wants 
a  consideration,  something  moving  from  one  part}'-  to  the  other:  the  only 
consideration  here  was  the  gratification  of  a  desire  to  spread  the  Gos- 
pel. We  are  told  that  money  has  been  contributed  by  the  four  Synods 
to  the  Church  funds,  but  it  has  been  candidly  confessed,  that  this  fact,  if 
so  proved,  would  show  nothing  more  than  the  recognition  of  these  bodies 
by  the  General  Assembly.  If  money  was  contributed  at  all,  it  was  cer- 
tainly long  after  "  the  Plan  of  Union"  was  established,  and  therefore 
could  not  be  esteemed  the  consideration  of  the  agreement.  I  say,  then, 
that  ho  consideration  has  been,  or  can  be  proved  to  have  passed  between 
the  parties,  whoever  they  were.  The  "  Plan"  had  its  origin  in  motives 
of  Christian  kindness  and  charity.  Presbyterians  have  sometimes  been 
charged  with  an  ambition  of  extending  widely  their  limits,  and  making 
themselves  the  Universal  Church.  Certainly,  if  motives  of  ambition  led 
them  to  adopt  this  plan,  if  they  hoped  thereby  to  extend  their  particular 
doctrines  and  forms  of  worship,  they  have  been  sadly  disappointed. 
Those  admitted  by  the  plan  have  been  brought  up  under  a  different  kind 
of  worship  and  of  doctrine.  Though  the  result  may  have  verified  an 
anticipation  that  the  kingdom  of  the  Redeemer  would  be  extended,  cer- 
tainly the  plan  has  not  extended  their  own  Church.  If  intended  as  a 
contract,  it  was  without  competent  parties,  without  a  legal  consideration, 
was  entered  into  without  power  on  either  side.  It  was  a  plan  analogous 
to  those  which  the  Presbyterian  Church  has  formed  for  evangelizing  the 
heathen,  and  distributing  funds  in  charity;  and  at  most  was  intended  but 
for  temporary  purposes. 
Court  adjourned. 

FRIDAY  MORNING,  March  22d— 10  o'clock. 

With  submission  to  your  Honour — Gentlemen  of  the  Jury — A 
part  of  yesterday  I  occupied  in  an  examination  of  the  character  of  the 
proceedings  of  abrogation,  and  endeavoured  to  show  that  the  "  Plan  of 
Union"  had  no  properties  which  rendered  those  proceedings  illegal  or 
void.  That  it  was  not  a  contract,  for  various  reasons  which  I  offered; 
that  there  were  no  parties  able  and  willing  to  contract,  and  who  actually 
did  contract;  that  it  was  a  mere  system  of  regulations,  similar,  for  in- 
stance, to  the  arrangements  which  have  been  made  by  different  govern- 
ments, independently  of  treaties,  for  the  suppression  of  the  slave-trade, 
an  object  of  interest  to  all  humanity;  which  arrangements,  however,  are 
not  indissoluble,  but  may  at  any  time  be  abrogated.  The  General  Assem- 
bly has  no  power  without  its  constitution,  and  the  General  Association  of 
Connecticut  no  power  at  all;  and  this  was  distinctly  asserted  on  the  face 
of  the  resolutions  themselves.  But  our  antagonists,  though  they  have 
thus  had  notice  of  our  reasons  for  the  abrogation,  for  two  years,  have  not 
produced  any  evidence  to  show  the  insufficiency  of  those  reasons;  and 
more  than  all  this,  neither  of  the  supposed  parties  to  the  agreement,  who 
alone  could  be  interested  in  its  fulfilment,  have  entered  any  complaint  or 


366 


PRESBYTERIAN  CHURCH  CASE. 


remonstrance  against  our  proceedings.  Where  do  we  find  our  opponents 
asserting  that  the  Connecticut  Association,  or  the  Congregational  Church 
has  remonstrated  against  what  they  call  the  violation  of  a  contract  ?  No; 
the  parties,  and  the  only  parties,  who  object,  are,  as  they  themselves  al- 
lege, Presbyterians — the  ministers  of  the  New-school.  Are  they  the 
champions  appointed  to  defend  the  rights  of  either  the  Association  of 
Connecticut,  or  the  Congregational  Church  ?    To  all  such,  I  answer, 

Non  tali  auxilio,  baud  defensoribus  istis — 

not  by  such  assistance,  are  these  acts  to  be  overturned,  when  the  par- 
ties themselves  do  not  declare  them  void,  or 'raise  their  hands  against 
them. 

The  next  great  principle  which  I  would  submit  is,  that  no  relation 
merely  human  is  indissoluble.  Take  a  familiar  instance:  suppose  a  part- 
nership formed,  with  no  limit  as  to  time;  either  partner  may  dissolve  the 
connexion  at  pleasure,  only  giving  notice  to  third  parties  that  they  may 
not  suffer  loss.  I  take  this  illustration  because  it  is  familiar.  If  in  such 
case,  a  partner  see  that  the  connexion  is  likely  to  prove  disastrous,  or  that 
his  companion  has  violated  his  pledge,  he  may  abrogate  the  union  just 
when  he  chooses,  taking  care  however  that  the  rights  of  strangers  are  not 
prejudiced.  Take  another  example — Where  no  time  is  fixed  for  the  pre- 
sident of  a  college  or  a  professor  to  continue  in  ofiice,  the  mutual  bond  is 
mutually  dissolvable.  There  may  be  some  question  whether  this  princi- 
ple always  extends  to  tl>e  case  of  a  pastor  and  his  congregation.  But 
certainly  if  there  is  not  infused  into  the  agreement  a  contract,  either  ex- 
press or  implied,  that  the  relation  is  to  exist  for  life,  he  has  a  right  to 
leave  you,  and  you  to  exclude  him:  I  do  not  know,  where  you  will  find 
a  reciprocal  relation  of  this  sort  which  is  not  dissoluble  at  the  pleasure  of 
either  party,  if  no  wrong  be  done  thereby  to  third  persons.  Here  the 
duration  of  the  agreement,  or  so-called  contract,  was  entirely  vague,  and 
indefinite — no  term  was  fixed. 

Shall  I  enter  upon  a  broader  sphere  of  illustration,  and  one  more  be- 
coming the  present  subject?  Take  the  case  which  has  been  proposed,  of 
the  state  of  Pennsylvania.  Suppose  that  she  should  declare  herself  the 
ally  of  a  foreign  power  at  war  with  this  country,  and  opposed  to  all  in- 
tercourse with  the  other  states.  This  would  indeed  be  treasonable  in 
the  individual  citizens,  but  an  actual  separation  might  be  effected.  The 
state  of  the  honourable  gentleman  who  preceded  me,  South  Carolina, 
once  threatened  a  separation  from  the  Union.  Might  she  not  in  an  evil 
hour  have  carried  the  alleged  plan  into  execution?  Mr.  Meredith  has 
asked  you  whether  the  Common  Councils  of  this  city  could  cut  off  four 
of  the  wards?  Does  he  not  know  that  two  of  them  were  actually  cut  off, 
and  now  belong  to  the  county.  His  illustration,  however,  was  inappli- 
cable in  one  respect:  he  supposed  that  the  city  councils  should  make  the 
attempt,  when  they  have  no  authority  whatever  over  the  subject,  and 
their  action  in  such  a  case  would  be  like  that  of  an  inferior  judicatory — a 
Presbytery.  But  when  the  Assembly  of  Pennsylvania  said,  that  for  a  parti- 
cular purpose  two  wards  should  segregate  themselves,  and  be  attached  to 
the  county,  they  were  obliged  to  accjuiesce,  though  they  complained  of 
the  act  of  excision.  The  only  question  then  was,  as  it  is  the  only  ques- 
tion now,  where  was  the  [)Ower  to  exscind  vested?     It  must  be  vested 


MR.  INGERSOLL'S  ARGUMENT.  357 

somewhere;  and  with  whatever  branch  of  the  government  it  may  be 
lodged,  by  that  may  it  be  exercised.  I  know  of  no  law  which  may  not 
be  repealed.  For  an  authority  on  this  point  I  refer  your  honour  to  4 
Cokeys  Rep.  43.  And  especially  is  this  the  case  when  the  party  pro- 
tected by  the  law  has  violated  it;  when  that  party  has  voluntarily  thrown 
off  its  protection.  Vattel  says— Law  of  Nat.  B.  I.  Ch.  XVI.  §  197 — 
"  The  law  is  the  same  with  respect  to  the  two  contracting  parties:  if  the 
protected  does  not  fulfil  his  engagements  with  fidelity,  the  protector  is 
discharged  from  his;  he  may  afterwards  refuse  the  protection,  and  de- 
clare the  treaty  broken  in  case  the  situation  of  his  affairs  renders  such  a 
step  most  to  his  advantage." 

The  "Plan  of  Union,"  however,  as  I  have  before  remarked  was  but 
temporary,  intended  only  for  the  new  settlements,  a  semi-barbarous  fron- 
tier, which  was  not  yet  ready  to  receive  the  discipline  and  doctrine  of 
the  Presbyterian  Church.  This  exigency  passed  away,  and  the  "  Plan" 
should  have  passed  away  with  it.  But  it  was  unconstitutional  and  void 
from  the  commencement.  It  contravened  the  fundamental  law  and  the 
principles  of  the  charter,  HoharVs  Rep.  87.  On  this  point  I  cheerfully 
meet  our  opponents.  It  is  going  much  too  far,  to  say,  that  if  this  act  was 
void,  every  thing  done  by  the  Assembly  since  1801,  must  have  been  also 
ii'regular  and  void.  Usurpation  of  power  does  not  always  invalidate 
acts  done  under  the  reign  of  such  usurpation.  If  the  sheriff  wrongfully 
returns  certain  persons  as  duly  elected  members  of  Congress,  they  take 
their  seats,  and  hold  them  until  it  is  suggested  that  their  commissions  are 
invalid,  when  a  committee  reports  upon  their  case,  and  the  house  decides. 
Yet  all  the  acts  of  Congress  passed  in  the  mean  time  are  not  void.  I 
will  recur  to  the  illustration  afforded  by  the  case  of  a  government.  All 
the  governmental  acts  performed  during  the  Protectorship  of  Cromwell, 
were  acknowledged  as  legally  valid,  after  his  usurpation  had  passed  away 
like  a  shadow.  Some  government  was  absolutely  necessary,  and  his  was 
the  government  de  facto;  therefore  on  the  restoration,  its  acts  were  not 
all  declared  nugatory.  One  of  the  best  men  in  England — Sir  Matthew 
Hale — was  the  first  to  sit  upon  the  bench  under  the  Protectorate.  Shall 
we  now  doubt  whether  his  judicial  acts  were  valid?  Almost  the  whole 
eastern  world  was  revolutionized  by  the  arch-usurper  Napoleon.  But 
after  all  the  shadowy  sovereignties,  offspring  of  usurpation,  which  he 
established,  had  faded  away,  the  restored  governments  held  themselves  re- 
sponsible for  all  the  wrongs  committed  by  the  usurper,  and  have  done 
justice  to  the  sufferers.  Millions  upon  millions  have  been  paid  by  France, 
Spain,  and  Naples,  as  an  indemnity  for  those  wrongs:  they  have  redeemed 
them  all.  This  doctrine  in  regard  to  the  acts  of  a  de  facto  government 
is  perfectly  well  understood. 

Tiie  "  Plan  of  Union"  I  say  then  was  unconstitutional — that  is,  con- 
trary to  the  Constitution  of  the  Presbyterian  Church — and  opposed  to 
the  law  of  Pennsylvania.  It  was  totally  inconsistent  with  the  essential 
principles  of  the  system  of  Presbyterianism.  It  admitted  into  the  Church 
materials  radically  distinct  from  those  of  which  it  was  originally  consti- 
tuted. Let  us  not  confound  this  "Plan  of  Union"  with  occasional  and 
temporary  unions  of  a  different  kind — unions  not  extending  to  a  partici- 
pation in  the  powers  of  government.  The  history  of  the  Presbyterian 
Church  is  not  wanting  in   instances  of  this  latter  sort  of  connexion.     I 


3g8  PRESBYTERIAN  CHURCH  CASE. 

find  that  in  the  first  century  after  the  Reformation,  Presbyterians  united 
with  Episcopal  Churches.  Congregations  of  them  were  placed  under  the 
protection  of  the  most  orthodox  Bishops.  Synods  composed  of  Presbyte- 
rians invited  and  received  the  co-operation  of  English  divines  deputed  by 
the  Church  of  England.  Presbyterian  ministers  were  actually  instituted 
to  English  benefices  without  being  Episcopally  ordained.  Bishop  Heber 
thought  that  he  might  consistently  with  his  principles  commune  with  a 
Patriarch  of  the  Greek  Church.  On  the  wreck  of  the  unhappy  Pulaski, 
when  all  were  awaiting,  in  dreadful  suspense,  the  moment  that  should  end 
their  lives,  all,  doubtless,  united  in  a  cordial  aspiration  to  their  common 
God.  These  were  moments  of  emergency?  But  the  "  Plan  of  Union" 
was  a  diflerent  thing.  It  was  a  plain  violation  of  the  fundamental  princi- 
ples of  Presbyterianism, 

The  Constitution  expressly  provides  that  every  church  shall  have  a 
bench  of  ruling  elders  appointed  for  life,  and  forming  with  the  pastor, 
what  is  called  a  church-session.  The  General  Assembly,  according  to 
the  same  authority,  is  to  be  composed  of  ministers  and  elders  and  none 
else.  But  by  the  "  Plan  of  Union"  were  admitted  into  the  Assembly 
representatives  of  a  totally  foreign  constituency,  who  were  neither  minis- 
ters nor  elders.  That  is,  Congregationalistshave  been  represented  in  that 
body  by  committee-men.  And  not  only  so,  but  as  all  the  Presbyterian 
ministers  belonging  to  a  Presbytery,  whether  pastors  or  not,  are  entitled 
to  representation,  and  as  Presbyterian  churches  alone  are  so  entitled, 
Presbyterian  ministers  being  allowed  to  preach  to  Congregational 
churches,  the  due  proportion  between  ministers  and  elders  is  destroyed: 
there  may  be  twenty-four  ministers  without  a  single  elder  in  a  Pres- 
bytery: all  the  ministers  may  be  either  without  charge,  or  be  preach- 
ing to  Congregational  churches.  Under  the  operation  of  this  plan  a 
Presbytery  may  be  formed  not  embracing  a  single  Presbyterian  church, 
the  ministers  all  representing  colleges  or  churches  of  a  different  denomi- 
nation. Thus  in  the  Presbytery  of  Newburyport,  the  statistics  of  which 
were  read  to  you  the  other  day,  you  remember  there  were  only  two 
Presbyterian  churches,  while  there  were  eight  pastors  of  Congregational 
churches.  Of  course  the  representative  character  of  that  Presbytery  is 
nearly  destroyed. 

Let  us  look  at  this  "  Plan  of  Union,"  not  relying  entirely  upon  the 
mere  title,  and  compare  it  with  our  charter  of  incorporation. 

Here  Mr.  Ingersoll  read  the  Plan. —  Vide  ante,  p.  48. 

Now  compare  this  with  the  charter.  The  latter  is  styled  "  An  Act 
for  incorporating  the  Trustees  of  the  Ministers  and  Elders,  constituting 
the  General  Assembly  of  the  Presbyterian  Church,  in  the  tjnited  States 
of  America."  The  franchise  extends  no  farther  than  to  the  ministers  and 
elders;  but  the  Union  of  1801,  incorporated  Congregationalists  and  com- 
mittee-men with  them.  The  same  thing  appears  in  the  preamble  of  the 
act  and  in  every  part  of  it. 

"  Whereas  the  ministers  and  elders  forming  the  General  Assembly  of 
the  Presbyterian  Church  of  the  United  States  of  America,  consisting  of 
citizens  of  the  State  of  Pennsylvania,  and  of  others  of  the  United  States  of 
America  aforesaid,  have  by  their  petition  represented,  that  by  donations, 
bequests,  or  otherwise,  of  charitably  disposed  persons,  they  are  possessed 
of  monies  for  benevolent  and  pious  purposes,  and  the  said  ministers  and 


MR.  INGERSOLL'S  ARGUMENT.  359 

elders  have  reason  to  expect  farther  contributions  for  similar  uses;  but 
from  the  scattered  situation  of  the  said  ministers  and  elders,  and  other 
causes,  the  said  ministers  and  elders  find  it  extremely  difficult  to  man- 
age the  said  funds,  in  the  way  best  calculated  to  answer  the  intention  of 
the  donors:  Therefore,  Be  it  enacted,  &c."  And  such  is  the  phraseology 
used  throughout  the  act,  as  appears  especially  from  section  sixth,  the  most 
important  part  of  it. 

Mr.  Ingersoll  here  read  section  sixth. —  Vid.  ante,  ;o.  21.  The  minis- 
ters and  elders  represented  in  the  Assembly,  choose  the  trustees  and  in- 
struct them  how  to  act  in  every  important  particular.  An  union  therefore 
with  the  constituency  of  that  bod}^,  of  persons  who  are  neither  ministers 
or  elders,  is  a  palpable  violation  of  the  act  of  the  legislature.  It  is  as  great 
_a  violation  of  it,  to  admit  Congregationalists,  as  to  admit  individuals  of  a 
sect  totally  difierent  from  Presbyterians  in  doctrine  and  worship.  Bap- 
tists and  Episcopalians  might  as  well  be  suffered  to  partake  of  the  bene- 
fits of  the  franchise,  as  Congregationalists.  If  they  had  chosen  to  admit 
an  association  of  Mussulmen,  would  they  not  violate  the  charter  ?  In  the 
case  already  cited  from  7  Serg.  <§■  Raiule,  Chief  Justice  Tilghman  took 
especial  care  to  vindicate  the  integrity  of  the  Roman  Catholic  system,  to 
pronounce  unlawful  any  thing  tending  to  sap  the  foundations  of  that  par- 
ticular Church,  any  attempt  to  divert  the  bounty  of  its  founders;  watch- 
ing jealously  the  rights  of  the  original  parties,  and  declaring  all  acts  de- 
structive of  them,  by  the  introduction  into  the  Church  of  heterogeneous 
materials,  entirely  void. 

Some  doubts  have  been  expressed,  whether  any  of  the  churches  within 
the  bounds  of  the  four  Synods,  came  in  under  the  "Plan  of  Union."  I 
shall  not  trouble  you  with  a  lengthened  exposition  on  this  point.  The 
evidence  of  the  fact  is  already  before  you,  and  I  shall  merely  advert  to  it 
in  a  cursory  manner.  You  recollect  that  the  resolution  by  which  the 
"  Plan"  was  abrogated,  denies  the  authority  of  the  Connecticut  Association 
to  enter  into  such  an  agreement.  The  following  is  the  language  of  one 
of  the  protests  entered  by  the  members  of  the  New-school  against  this 
measure: 

Here  Mr.  Ingersoll  read  a  section  of  the  protest  referred  to. —  Vid. 
ante,  p.  157. 

And  with  this  testimony,  that  given  by  Mr.  Squier  exactly  corres- 
ponds. He  told  us  that  there  were  churches  in  the  region  embraced  by 
the  four  Synods,  in  a  sort  of  initiative  stage,  which  he  described,  that 
had  not  yet  formed  elderships;  as  if  a  small  church  might  not  just  as  well 
have  ruling  elders  as  a  larger  one.  In  the  answer  to  this  protest,  the  fol- 
lowing language  is  used: 

"  The  other  remark  is,  that  the  Plan  of  Union  itself  doss  not  prescribe 
the  terms  of  admission  into  the  communion  of  the  Presbyterian  Church. 
It  prescribes  the  manner  in  which  Congregationalists  may  remain  out  of 
this  Church,  and  yet  exercise  a  controlling  and  governing  influence  over 
its  ecclesiastical  judicatories." 

It  formed  an  unprecedented,  ill-digested  and  uncomfortable  system. 
We  are  told  that  it  is  only  while  the  congregations  are  in  an  initiative 
state  that  they  do  not  conform  to  the  Presbyterian  government  and  ap- 
point elders.     But  how  long  is  this  initiative  stage  to  continue?    They 

47 


370  PRESBYTERIAN  CHURCH  CASE. 

seem  never  to  get  beyond  it:  it  is  likely  to  last  until  the  end  of  time ; 
and  until  they  choose  to  consider  their  initiation  consummate  and  act 
upon  it  accordingly,  though  still  Congregationalists,  they  may  exercise  a 
controlling  influence  over  the  judicatories  of  our  Church. 

But  passing  lightly  over  the  ground  of  the  constitutionality  of  the 
"  Plan," — on  it  they  do  not  lay  very  great  stress — -our  opponents  endea- 
vour to  escape  to  a  more  popular  ground.  They  say  that  if  the  union  of 
1801,  were  originally  illegal,  it  has  since  been  legalized  by  the  acquiesc- 
ence of  all  parties  concerned  during  a  space  of  thirty-six  years.  We 
are  told  that  both  the  old  patriarchs  and  the  young  have  acquiesced  in 
its  provisions.  I  think  I  have  shown  that  it  was  unconstitutional.  Let 
us  now  see  whether  any  length  of  acquiescence  could  make  it  good. 
A  constitution  is  the  fundamental  law  which  legislation  and  acquiescence 
combined  cannot  subvert.  The  true  doctrine  on  this  point  I  will  lay 
down  in  the  language  of  a  celebrated  judge  of  this  court,  to  be  found  in 
the  case  of  Vanfiorne  vs.  Dorrance,  2  Dallas^  Rep.  308. 

"What  is  a  Constitution?  It  is  the  form  of  government,  delineated  by 
the  mighty  hand  of  the  people,  in  which  certain  first  principles  of  funda- 
mental laws  are  established.  The  Constitution  is  certain  and  fixed;  it 
contains  the  permanent  will  of  the  people,  and  is  the  supreme  law  of  the 
land;  it  is  paramount  to  the  power  of  the  Legislature,  and  can  be  revoked 
or  altered  only  by  the  authority  that  made  it.  The  life-giving  principle 
and  the  death-doing  stroke  must  proceed  from  the  same  hand.  What  are 
Legislatures?  Creatures  of  the  Constitution;  they  owe  their  existence 
to  the  Constitution:  they  derive  their  powers  from  the  Constitution:  It 
is  their  commission;  and  therefore  all  their  acts  must  be  conformable  to 
it,  or  else  they  will  be  void.  The  Constitution  is  the  work  or  will  of 
the  people  themselves,  in  their  original,  sovereign,  and  unlimited  capacity. 
Law  is  the  work  or  will  of  the  Legislature  in  their  derivative  and  subor- 
dinate capacity.  The  one  is  the  work  of  the  creator,  and  the  other  of 
the  creature.  The  Constitution  fixes  limits  to  the  exercise  of  legislative 
authority,  and  prescribes  the  orbit  within  which  it  must  move.  In  short, 
gentlemen,  the  Constitution  is  the  sun  of  the  political  system,  around 
which  all  legislative,  executive,  and  judicial  bodies  must  revolve.  What- 
ever may  be  the  case  in  other  countries,  yet  in  this  there  can  be  no  doubt, 
that  every  act  of  the  Legislature,  repugnant  to  the  Constitution,  is  abso- 
lutely void." 

Tlien  on  the  next  page  he  remarks,  "  The  Constitution  of  a  State  is 
stable  and  permanent,  not  to  be  worked  upon  by  the  temper  of  the  times, 
nor  to  rise  and  fall  with  the  tide  of  events:  notwithstanding  the  compe- 
tition of  opposing  interests,  and  the  violence  of  contending  parties,  it 
remains  firm  and  immoveable,  as  a  mountain  against  the  strife  of  storms, 
or  a  rock  in  the  ocean  amidst  the  raging  of  the  waves.  I  take  it  to  be  a 
clear  position;  that  if  a  legislative  act  oppugns  a  constitutional  principle, 
the  former  must  give  way,  and  be  rejected  on  the  score  of  repugnance. 
I  hold  it  to  be  a  position  equally  clear  and  sound,  that,  in  such  case,  it 
will  be  the  duty  of  the  court  to  adhere  to  the  Constitution,  and  to  declare 
the  act  null  and  void.  The  Constitution  is  the  basis  of  legislative  au- 
thority; it  lies  at  the  foundation  of  all  law,  and  is  a  rule  and  commission 
by  which  both  legislators  and  judges  arc  to  proceed.     It  is  an  important 


MR.  INGERSOLL'S  ARGUMENT.  37 1 

principle,  which  in  the  discussion  of  questions  of  the  present  kind,  ought 
never  to  be  lost  sight  of,  that  the  judiciary  in  this  country  is  not  a  subor- 
dinate, but  co-ordinate,  branch  of  the  government." 

Standing  then  on  substantial  ground,  and  borne  out  by  the  language  of 
this  distinguished  and  eloquent  judge,  I  assert  that  no  length  of  time,  no 
acquiescence,  can  make  valid  an  act  originally  unconstitutional.  Long  as 
it  may  continue  in  existence,  it  is  still  void,  and  no  one  can  be  compelled 
to  comply  with  its  provisions.  If  therefore  it  be  decided— and  I  believe 
the  gentlemen  of  the  New-school  concede  this  point — that  the  "  Plan  of 
Union"  was  at  the  beginning  illegal  and  void,  it  is  impossible  that  it 
should  now  be  otherwise  than  illegal.  What  effect  can  mere  acquies- 
cence have  in  regard  to  matters  of  conscience,  or  of  faith?  Where  per- 
sons have  ignorantly  contracted  an  incestuous  marriage,  though  they  arc 
guilty  of  no  crime,  the  marriage  is  null,  and  was  so  from  the  beginning. 
Where  a  man  has  illegally  married  a  second  wife,  while  his  first  was  liv- 
ing, the  contract  is  utterly  void,  except  in  cases  for  which  the  law  has 
especially  provided;  and  though  he  may  have  lived  half  a  century  with 
her,  it  is  still  as  utterly  void  as  at  the  first.  It  is  impossible  that  any 
length  of  acquiescence  can  do  away  with  the  rules  of  conscience,  or  con- 
travene the  fundamental  laws  of  the  land.  Acquiescence  in  such  a  case 
can  make  no  impression.  It  is  no  more  than  waves  dashing  against  a 
rock,  or  wolves  baying  at  the  moon.  It  is  a  well  established  rule  of  the 
common  law  that  a  bad  custom  must  be  abolished,  and  that  no  lapse  of 
time  can  make  good  what  is  originally  bad.  Quod  ah  initio  non  valet, 
tractu  temporis  non  convalescit.  In  a  case  reported  in  8  Cranch's 
Rep.  1,  Chief  Justice  Marshall  decided  that  letters  of  administration 
granted  when  an  executor  was  present  and  capable  of  acting,  were  utter- 
ly void,  and  that  no  length  of  time  could  make  them  any  thing  else  than 
void.  Our  own  courts  have  established  the  same  doctrine,  and  your 
honour  has  led  the  way.  You  are  all  familiar  with  the  history  of  that 
beautiful  square  in  this  city,  a  part  of  which  for  a  hundred  years  had 
seemingly  belonged  to  a  German  congregation,  who  held  it  under  a  regu- 
lar title,  having  paid  for  it  and  obtained  a  warrant  and  patent.  It  was 
nevertheless  decided  that  their  title  was  contrary  to  the  fundamental 
law  which  estabHshed  the  city,  and  therefore  invalid.  I  could  mention 
many  similar  cases.  Who  can  for  a  moment  suppose  that  any  lapse  of 
time,  any  length  of  acquiescence,  can  give  sanctity  to  error,  or  confirma- 
tion to  wrong? 

This  nation  is  thought  to  stand  on  the  verge  of  war,  from  its  just  deter- 
mination to  disregard  an  alleged  acquiescence  of  half  a  century  in  the  as- 
serted boundary  line  of  its  North  Eastern  Commonwealth.  We  began  our 
political  existence,  by  breaking  the  fetters  of  a  long  course  of  submissive  ac- 
quiescence in  oppressions  and  tyrannical  proceedings,  an  enumeration  of 
which  swells  the  Declaration  of  Independence.  Every  change  of  govern- 
ment, every  advancement  of  freedom,  every  improvement  in  the  condition 
of  a  people,  proceeds  from  the  exercise  of  the  right  to  put  an  end  to  long 
continued  acquiescence  in  abuses  until  they  have  become  too  burthensome 
to  be  borne. 

With  the  change  of  times  and  circumstances,  the  '*  Plan  of  Union,"  if 
ever  beneficial  and  proper,  has  become  unnecessary.     Those  for  whose 


372  PRESBYTERIAN  CHURCH  CASE. 

assistance  and  protection  it  was  formed  no  longer  call  for  aid.  Chief 
Justice  Tilghman,  in  the  case  which  I  have  already  referred  to  more  than 
once,  comments  on  this  very  subject,  remarking  that  laws  which  suit  the 
exigencies  of  one  period,  are  not  suited  to  another;  that  therefore  every 
law  is  liable  to  alteration.  For  the  same  opinion  I  would  also  refer  to 
Har grave's  Law  Tracts,  269.  With  the  vicissitudes  of  human  exis- 
tence, all  human  enactments  must  undergo  continual  change;  especially 
those  that  regard  expediencies  only.  Constitutional  law  on  the  other  hand 
is  permanent.  It  is  irreversible  unless  by  the  same  sovereign  power  that 
first  called  it  into  operation. 

The  resolutions  of  1837  can  be  said  to  violate  rights  of  property  with 
as  little  reason  as  they  can  be  called  the  violation  of  a  contract.  Evi- 
dence of  contributions  in  the  four  Synods  has  been  admitted,  but  only  for 
a  special  purpose.  When  we  attempted  to  give  counteracting  testimony, 
it  was  ruled  out,  his  Honour  deciding,  what  the  learned  counsel  them- 
selves admitted,  that  their  evidence  went  to  show  merely  the  recognition 
of  these  Synods  by  the  General  Assembly.  This  is  not  a  question  about 
property.  Our  opponents  do  not  sue  for  any  particular  fund.  We  should 
have  been  delighted  to  enter  into  an  account  with  them;  but  our  proof 
on  this  point,  offered  to  meet  a  supposed  contingency,  was  considered  in- 
applicable and  rejected — rejected,  as  we  think,  very  properly.  We  main- 
tain that  all  ideas  of  property  are  foreign  to  the  present  suit;  that  there 
is  no  question  of  property  before  you  for  decision.  We  assert,  however, 
that  if  the  account  between  us  were  balanced,  it  would  appear  conclu- 
sively, that  they  had  been  great  gainers  by  the  connexion,  in  a  pecuniary 
point  of  view.  But  such  details  have  been  rejected  by  the  court;  and 
you,  gentlemen,  must  recollect,  that  the  evidence  given  by  our  opponents 
upon  this  point,  is  to  have  no  weight,  farther  than  as  it  may  go  to  prove 
the  recognition  of  the  four  Synods.  Suppose  they  have  been  thus  recog- 
nised, and  we  do  not  deny  that  they  have  been,  what  does  that  prove? 
Their  admission  in  the  first  place  was  illegal,  and  we  have  shown  that 
even  acquiescence  could  not  make  it  good.  So  far  from  our  having  de- 
frauded them  of  their  rights,  they  have  requited  our  benevolence  only 
by  acts  of  ingratitude.  Under  our  protection  they  have  gathered  strength, 
which  has  been  constantly  exercised  in  opposition  to  our  interests.  It 
was  absolutely  necessary  to  put  an  end  to  the  connexion,  yet  the  final 
measures  taken  to  effect  that  purpose  were  adopted  reluctantly,  and  only 
after  every  other  expedient  had  failed.  No  question  as  to  property  can 
affect  the  issue  before  you.  If  we  have  taken  any  portion  of  their  money, 
and  it  has  not  been  restored,  and  if  we  promised  to  retain  it  only  so  long 
as  they  might  be  members  of  the  Church,  they  have  a  perfect  right  to 
call  upon  us  for  it.  We  do  not  wish  to  disown  them,  and  retain  their 
funds:  there  can  be  no  just  pretence  that  we  do.  No  right  of  property 
has  been  violated.  We  have  always  professed  a  readiness  to  give  up 
every  cent  which  in  the  strictest  spirit  of  equity  we  can  owe  them.  But, 
gentlemen,  you  must  remember  that  no  question  of  property  is  involved 
in  the  present  issue. 

Least  of  all  have  we  condemned  these  men  without  a  hearing.  The 
Assembly  of  1837,  in  the  first  place  passed  a  mere  abstract  resolution,  and 
this  was  followed  simply  by  a  declaration  of  its  consequences.     The  act 


MR.  INGERSOLL'S  ARGUMENT.  373 

of  abrogation  was  a  mere  abstract  proceeding,  and  not  at  all  a  personal 
one:  the  ^^Plan"  was  abrogated  in  the  same  way  that  it  had  been  en- 
acted. One  reason  given  for  this  act  was,  that  the  "  Plan"  had  not  been 
sent  down  to  the  Presbyteries  for  their  sanction.  Now  if  there  is  any 
force  in  the  objection  that  the  Assembly  itself  had  a  right  to  create  this 
plan,  certainly  it  had  an  equal  right  to  destroy  it.  I  say  that  the  first 
resolution  complained  of  was  a  mere  abstract  measure,  and  that  the 
others  were  not  acts  of  positive  legislation,  but  only  declarative  of  the 
consequences  of  the  former.  The  Assembly  did  not  try  any  body,  but 
merely  declared  that  the  plan  of  1801,  however  good  in  theory  was  bad 
in  practice,  unconstitutional,  and  therefore  void  from  the  beginning. 
Then  ensued  as  a  corollary  from  this  proposition,  the  declaration,  that  in 
consequence  and  by  virtue  of  the  abrogation,  first,  the  Synod  of  the 
"Western  Reserve,  and,  then,  the  Synods  of  Utica,  Geneva,  and  Genesee, 
were  no  longer  component  parts  of  the  Presbyterian  Church.  This  was 
a  mere  consequence  of  the  abrogation.  There  could  be  no  such  thing  as 
a  trial.  The  Asseml)]y  had  no  jurisdiction  in  the  case.  That  body  has 
no  power  to  try  Congregationalists,  or  to  punish  them  for  being  such.  It 
is  begging  the  whole  question  to  talk  of  a  trial.  If  they  were  good  Pres- 
byterians there  was  nothing  to  try  them  for:  if  they  were  Congregation- 
alists we  had  no  jurisdiction  over  them.  In  fact  a  trial,  if  it  could  have 
been  had,  would  have  been  supererogatory.  Why  should  we  try  them? 
Let  them  merely  come  to  us  and  assert  their  innocence,  and  all  difficulty 
ceases.  Let  them  only  come  and  say  that  they  are  Presbyterians,  and  they 
shall  be  restored  to  our  communion  if  they  are  separated  from  it.  To 
talk  of  a  trial  is  to  insist  upon  their  having  been  charged  with  crime, 
when  none  was  alleged  against  them. 

It  is  said  that  the  Assembly  has  formed  alliances  with  other  sects 
equally  incongruous.  If  so,  the  sooner  they  are  dissolved  the  better. 
But  two  wrongs  can  never  make  a  right,  either  in  evidence  or  argument. 
If  we  have  incorporated  with  us  any  but  Presbyterians,  the  union  was 
improper,  and  let  us  get  rid  of  them  as  quickly  as  possible.  Indeed  we 
have  already  gotten  rid  of  some  such  associations,  if  indeed  the  connexion 
to  which  I  refer  is  to  be  considered  analogous  to  those  alluded  to  by  our 
opponents,  and  this  by  an  act  of  the  very  Assembly  that  passed  the  dis- 
owing  acts.     By  that  Assembly  it  was, 

"  Resolved,  That  while  we  desire  that  no  body  of  Christian  men  of 
other  denominations  should  be  prevented  from  choosing  their  own  plans 
of  doing  good — and  while  we  claim  no  right  to  complain  should  they 
exceed  us  in  energy  and  zeal — we  believe,  that  facts  too  familiar  to  need 
refutation  here,  warrant  us  in  affirming,  that  the  organization  and  opera- 
tions of  the  so  called  American  Home  Missionary  Society,  and  Ameri- 
can Education  Society,  and  its  branches,  of  whatever  name,  are  exceed- 
ingly injurious  to  the  peace  and  purity  of  the  Presbyterian  Church.  We 
recommend,  accordingly,  that  they  should  cease  to  operate  within  any  of 
our  churches.     Minutes,  1837,/?.  442. 

The  power  of  the  General  Assembly  to  pass  such  a  resolution  will  not 
I  presume  be  doubted;  but  its  connexion  with  the  Congregational  Church 
was  of  a  different  kind,  and  was  harder  to  be  gotten  rid  of.  We  find, 
however,  that  a  formal  protest  was  entered  against  this,  by  the  same  in- 


374  PRESBYTERIAN  CHURCH  CASE. 

dividuals  who  protested  against  the  other  resohitions.  They  tell  us  that 
we  have  formed  numerous  unions  as  obnoxious  to  the  charge  of  uncon- 
stitutionality as  that  of  1801,  and  yet  when  we  attempt  to  abrogate  them, 
uniformly  protest  against  the  measure.  Though  all  unconstitutional, 
they  are  to  stand  supported  by  one  another.  How  was  it  with  the  other 
plans  of  union  formed  by  the  Assembly?  Why  they  were  changed  and 
abrogated  at  its  own  pleasure.  At  one  time  the  delegates  were  allowed 
to  vote:  at  another  the  privilege  of  voting  was  taken  away. 

But  the  union  with  the  Associate  Reformed  Church  in  1822  has  been 
held  up  to  view  in  a  particular  manner,  and  Mr.  Meredith  has  dwelt  em- 
phatically on  one  little  phrase  which  he  finds  in  the  constitution  of  that 
Church — the  words  "  in  substance,"  occurring  in  the  act  of  adoption  of  its 
form  of  government,  passed  b}^  the  Synod  in  1799,  as  if  the  identification 
were  of  a  limited  character.  The  Synod  approved  of  this  form  absolutely 
"  as  being,  in  substance,  the  only  form  of  government  which  the  Lord 
Jesus  has  prescribed  to  his  church'' — a  very  different  thing  from  an  in- 
dividual's adopting  or  subscribing  it  in  a  qualified  sense.  You  find 
moreover  that  this  comprehensive  reference  to  a  divine  origin  is  employed 
onlj'-  as  to  government,  and  not  in  regard  to  doctrine.  In  the  same 
year,  1799,  on  the  31st  of  May,  the  Associate  Reformed  Synod  adopted 
the  Westminster  Confession  of  Faith  and  Catechisms,  by  the  following 
act,  in  good  faith  and  without  reserve. 

"  The  Westminster  Confession  of  Faith,  with  the  Catechisms,  Larger 
and  Shorter,  having  been  formerly  received  by  this  Synod,  with  a  reser- 
vation for  future  discussion  of  the  doctrine  respecting  the  power  of  the 
civil  magistrate  in  matters  of  religion;  and  the  said  doctrine  being  now 
modified  in  a  manner  more  agreeable  to  the  word  of  God,  to  the  nature 
of  the  Christian  Church,  and  to  the  principles  of  civil  society,  the  Synod 
do  explicitly  receive  the  aforesaid  Confession  and  Catechisms,  with  the 
doctrine  concerning  the  civil  magistrate,  as  now  stated  in  the  twentieth, 
twenty-third,  and  thirty-first  chapters  of  the  Confession,  as  the  system  of 
doctrine  which  is  built  upon  the  foundation  of  the  apostles  and  prophets, 
Jesus  Christ  himself  being  the  chief  corner  stone.  And  the  Synod  do 
hereby  declare,  that  the  aforesaid  Confession  and  Catechisms,  as  herein  re- 
ceived, contain  the  true  and  genuine  doctrine  of  the  Associate  Reform- 
EB  Church;  and  that  no  tenet  contrary  thereto,  or  to  any  part  thereof, 
shall  be  countenanced  in  this  Church."  Const,  of  Assoc.  Ref.  Church, 
{Su'orfPs  Edit.  New  York,  1799,)  7?.  8.  In  the  first  place,  then,  the 
qualification  of  the  approval  of  the  form  of  government  is  a  very  difierent 
thing  from  what  the  counsel  seemed  to  suppose.  In  the  second  place, 
there  is  no  such  qualifying  phrase  in  the  act  adopting  the  Confession  and 
Catechisms,  which  some  of  our  New-school  brethren  receive  "  for  sub- 
stance" only;  And,  thirdly,  in  the  interrogatories  addressed  to  ministers 
and  other  church-officers,  at  the  time  of  their  ordination,  there  are  no 
qualifying  words.  You  see  that  the  Westminister  Confession  of  Faith  is 
the  great  polar  star  of  the  Associate  Reformed,  as  it  is  also  of  the  Presby- 
terian Church:  they  both  receive  the  whole,  entire,  as  the  system  of 
doctrine  taught  in  the  Bible.  Butaf  the  Synod  had  at  that  time  adopted 
this  Confession  "  for  substance"  only,  the  adoption  was  a  very  old  affair. 
It  took  place  in  1799;  and  the  union  with  the  Presbyterian  Church  was 


MR.  INGERSOLL'S  ARGUMENT.  375 

not  formed  till  many  years  after.  At  the  latter  period  the  books  of  both 
sects  were  the  same,  and  it  was  required  to  assent  to  both  without  quali- 
fication. 

But  let  me  explain  this  matter  of  the  union  with  the  Associate  Re- 
formed Church  still  farther. 

Here  Mr.  Ingersoll  read  an  extract  from  the  Minutes,  containing  the 
articles  of  agreement  between  the  two  churches.  —  Vid.  ante.  pp.  126-7. 

Such  was  this  plan  of  union,  intended  completely  to  amalgamate  the 
two  Churches,  as  being  both  strictly  Presbyterian,  the  distinct  organiza- 
tion of  each,  however,  still  being  preserved.  All  the  property  of  the 
Associate  Reformed  Church  was  transferred  to  the  General  Assembly; 
but  late  decrees  have  decided,  that  those  who  did  not  come  in  under 
this  contract  were  not  affected  by  it.  By  a  judgment  of  the  Chancellor 
of  New  Jersey,  the  library  mentioned  in  the  articles  which  I  have  read, 
has  been  lately  restored  to  the  Associate  Reformed  Synod.  Appendix 
to  Min.  {Old-school)  1838,/?.  GO.  Reference  has  been  made  to  the  case 
of  Duncan  vs.  The  Ninth  Presbyterian  Church.  This  was  a  case, 
where  the  Associate  Reformed  Church  claimed  a  Presbyterian  house  of 
worship,  and  it  turned  upon  the  construction  of  the  will  of  a  certain  Mrs. 
Margaret  Duncan,  by  whom  the  property  had  been  bequeathed.  Many 
of  the  members  of  the  Associate  Reformed  Church  have  never  joined  the 
Presbyterians,  and  it  has  been  decided  that  their  rights  could  not  be 
affected  by  the  agreement.  As  to  those  who  have  united  with  us,  they 
are  firmly  and  proudly  Presbyterians;  but  they  had  no  right  to  carry 
away  with  them  the  funds  belonging  to  all. 

I  have  before  me,  now,  the  "  Formula  of  Questions  for  Ministers  at 
their  Ordination,''^  prescribed  in  the  Associate-Reformed  Constitution. 
Nothing  can  be  more  explicit. 

*'  Do  you  receive  the  doctrine  of  this  church,  contained  in  the  Confes- 
sion and  Catechisms,  as  founded  on  the  word  of  God,  and  as  the  expres- 
sion of  your  own  faith?  And  do  you  resolve  to  adhere  thereto,  in  oppo- 
sition to  all  Deistical,  Popish,  Arian,  Socinian,  Arminian,  Neonomian, 
and  Sectarian  errors,  and  all  other  opinions  which  are  contrary  to  sound 
doctrine  and  the  power  of  Godliness? 

"  Do  you  approve  the  form  of  Presbyterial  Church  Government,  and 
the  Directories  for  worship,  received  by  this  church,  as  agreeable  to,  and 
founded  on,  the  word  of  God?  And  do  you  resolve  to  maintain  and  ob- 
serve them  accordingly?" — p.  502. 

Passing  by  the  charge  that  we  have  admitted  other  foreign  materials, 
besides  Congregationalists,  into  the  composition  of  our  Church,  I  will 
occupy  your  attention  for  a  moment,  with  a  few  words  of  explanation  in 
regard  to  this  statistical  table  which  I  hold  in  my  hand,  and  which  has 
already  been  adverted  to  by  the  opposite  counsel.  The  statistics  of  the 
Presbytery  of  Newburyport  belonging  to  the  Synod  of  Albany,  have 
been  read  to  show  that  there  was  a  long  list  of  licentiates  candidly  re- 
ported as  connected  with  Congregational  churches,  and  then  the  statistics 
of  certain  Presbyteries  within  the  Synod  of  the  Western  Reserve,  or 
some  one  of  the  four  disowned  Synods,  to  show  that  there  no  such  cases 
were  reported:  yet  says  the  argument,  the  General  Assembly  did  not 
exscind  the  Synod  of  Albany:  it  still  continues  in  good  standing.  We 
may  answer  this  objection  in  various  ways.     There  are  but  two  churches 


376  PRESBYTERIAN  CHURCH  CASE. 

of  a  Presbyterian  character  in  the  Presbytery  of  Newburyport,  while  a 
long  list  of  ministers  who  preach  to  Congregational  churches  is  exhibited. 
There  is  no  reason  why  our  ministers  should  not  preach  to  Congregation- 
alists.  They  may  preach  to  the  heathen,  as  St.  Paul  did  to  the  Gentiles. 
This  does  not  interfere  with  their  Christian  duties,  or  vitiate  the  repre- 
sentation of  the  Church  in  the  Assembly.  The  Presbyterian  minister  may 
wade  through  blood  and  slaughter  to  carry  the  Gospel  to  those  who  have 
it  not,  or  he  may  preach  from  the  canopied  pulpit  of  a  church  establish- 
ment, and,  at  most,  he  is  to  be  considered  in  the  light  merely  of  a  minis- 
ter without  any  charge.  This  connexion  may  have  received  no  sanction; 
it  may  perhaps  indicate  merely  what  he  considers  right.  Not  a  single 
one  of  the  Congregational  churches  enumerated  on  this  list  is,  or  can  be, 
represented  in  Presbytery,  or  in  the  General  Assembly.  In  the  second 
column  you  will  find  the  list  of  churches  which  are  represented,  and  there 
but  two  names  are  given — only  two,  and  those  are  Presbyterian  churches — 
they  have  ruling  elders.  The  rest — eight  or  ten — are  not  represented 
at  all.  Now  let  us  turn  to  the  other  Synods — here  is  the  Synod  of  the 
Western  Reserve.  Is  there  not  more  error  in  that  than  in  the  Synod 
of  Albany?  We  are  not  bound  to  show  that  there  is.  Though  there  is 
the  clearest  proof  of  the  existence  of  a  Congregational  church  at  Middle- 
sex, while  this  is  one  of  the  churches  returned  by  its  Presbytery  as  Pres- 
byterian. Mr.  Squier  told  you  that  it  was  Congregational;  yet  nothing 
at  all  of  this  appears  in  the  report.  I  mention  the  circumstance,  how- 
ever, without  intending  to  dwell  upon  it,  for  his  Honour  has  made  a  de- 
cision excluding  such  testimony.  I  have  alluded  to  the  matter  only  be- 
cause my  learned  friend  has  pushed  it  upon  us,  notwithstanding  his 
Honour's  judgment.  If  the  General  Assembly  had  the  power  to  pass 
the  resolutions  of  1837,  you  have  nothing  to  do  with  their  reasons 
for  the  act — good  as  we  believe  them  to  be.  The  only  question  before 
you  is  whether  the  Assembly  had  the  power:  if  it  had,  it  is  no  matter,  so 
far  as  the  present  suit  is  concerned,  whether  it  was  exercised  with  good 
reason,  or  from  sheer  caprice.  Still  when  the  opposite  counsel  choose  to 
go  aside  from  the  real  matter  in  dispute,  and  introduce  an  entirely  foreign 
matter — the  Synod  of  Albany — to  your  consideration,  we  answer  them 
as  I  do  now.  Recollect,  gentlemen,  that  a  Presbyterian  minister  may 
either  have  a  charge,  or  have  none,  and  he  still  retains  his  right  to  a  seat 
in  the  Presbytery,  unless,  indeed,  he  enters  into  ecclesiastical  connex- 
ion with  some  other  sect.  He  may  preach  to  any  church,  live  without 
or  within  the  bounds  of  the  Presbytery,  sojourn  any  where,  live  any  where, 
and  still  not  lose  his  Presbyterial  standing.  It  is  with  him  as  with  a  citi- 
zen of  a  particular  country,  who  is  considered  a  resident  there  until  he 
fixes  his  domicil  elsewhere.  He  is  at  perfect  liberty  to  traverse  land  or 
water,  and  until  he  takes  up  his  permanent  abode  in  some  new  home,  his 
original  domicil,  the  place  of  his  birth,  still  remains  his  residence.  So  it 
is  with  these  ministers.  Each  belongs  to  some  Presbytery,  and  his  con- 
nexion with  it  continues  until  he  is  dismissed  to  another,  whether  he 
has  any  charge  or  not,  whether  he  lives  within  or  without  its  bounds. 
The  fact,  therefore,  of  his  preaching  to  a  Congregational  church  cannot 
afiect  his  Presbyterial  standing,  or  interfere  with  the  proper  constitution 
of  the  General  Assembly. 

If  you  will  turn  to  page  452  of  the  Minutes  of  1837,  you  will  find  it 


MR.  INGERSOLL'S  ARGUMENT.  377 

stated,  that  according  to  the  acknowledgment  of  the  commissioners  from 
the  Synod  of  the  Western  Reserve,  of  the  one  hundred  and  thirty-nine 
churches  composing  that  Synod,  there  were  but  twenty-five  Presbyterian 
churches. 

Mr.  Wood.  I  would  beg  leave  to  ask  whether  this  is  evidence. 

Mr.  Hubbell.   It  was  read  in  evidence  by  Mr.  Randall. 

Judge  Rogers.  I  understand  that  it  was  given  in  evidence;  but  it  is 
undoubtedly  immaterial. 

Mr.  Wood.  I  thought  your  Honour  had  overruled  all  testimony  upon 
that  point. 

Judge  Rogers.  The  case  certainly  does  not  depend  upon  these  facts. 

Mr.  Inger^oll.  I  am  bound  in  courtesy  to  pay  some  deference  to  the 
opinion  of  my  learned  friend  on  the  other  side.  I  do  not  myself  think 
the  evidence  material,  but  it  has  been  forced  upon  us,  and  we  were  per- 
fectly willing  to  meet  our  opponents  on  this  ground.  This  testimony, 
which  is  said  to  have  been  given  by  the  commissioners  from  the  Synod 
of  the  Western  Reserve  themselves — and  they  do  not  deny  the  allega- 
tion— was,  I  suppose,  a  part  of  that  elicited  from  them  by  the  catechetical 
course  of  inquiry  of  which  they  complain  in  the  protest,  to  which  the 
paper  referred  to  for  this  fact  was  an  answer.  And  the  testimony  is,  in 
part,  confirmed  by  Mr.  Squier.  He  told  us  that  the  church  of  Middlesex 
was  a  mixed  or  Congregational  church. 

Mr.  Wood.  That  was  another  Middlesex;  not  the  one  in  the  Synod 
of  the  Western  Reserve. 

Mr.  Ingersoll.  That  is  possible — no  doubt  it  is  the  fact  if  you  say  so. 
But  still  I  contend  for  the  statement  read  by  Mr.  Randall  himself  in  evi- 
dence: that  of  one  hundred  and  thirty-nine  churches  within  the  Synod  of 
the  Western  Reserve,  there  are  but  twenty-five  Presbyterian;  while  here 
in  this  statistical  table,  as  Mr.  Meredith  has  said,  all  of  them,  without  ex- 
ception, are  returned  as  Presbyterian !  But  I  admit  that  the  cause  does 
not  turn  upon  this  point.  Such  matters  could  be  determined  only  by  the 
General  Assembly  itself,  and  all  have  agreed  to  abide  by  its  decision  in 
regard  to  them.  His  Honour  has  said  that  this  testimony  has  nothing  to 
do  with  the  case;  that  it  is  no  matter  whether  the  Assembly  decided 
right  or  wrong,  if  it  had  a  right  to  decide  the  point  at  all.  Yet  I  have 
thought  it  necessary  to  say  what  I  have  said  in  regard  to  it,  to  avoid  the 
effect  of  a  collateral  argument  unnecessarily  drawn  into  the  case.  Re- 
member, gentlemen,  that  if  the  act  was  within  the  jurisdiction  of  the  As- 
sembly, you  cannot  inquire  whether  the  power  was  duly  exercised. 

Then,  as  we  have  shown,  that  the  act  abrogating  the  "  Plan  of  Union" 
was  within  the  jurisdiction  of  the  Assembly,  and  that  the  cessation  of  the 
Synod  of  the  Western  Reserve  and  of  the  three  others,  lo  be  parts  of  the 
Church,  was  a  mere  consequence  of  the  abrogation,  and  followed  from  it, 
as  a  matter  of  course,  the  claim  of  the  relators  to  be  trustees  cannot  have 
a  particle  of  foundation;  they  cannot  lawfully  demand  their  seats.  But 
suppose  that  the  act  of  abrogation  was  wrong.  Say  that  our  antagonists 
have  proved  the  Assembly  of  1837  to  have  been  in  error;  that  it  had  no 
power  to  abrogate  the  "  Plan,"  nor  to  declare  the  consequences  of  the 
abrogation :  they  have  not  yet  proved  one-half  of  what  is  necessary  to 
their  case:  their  task  is  not  half  completed.  The  relators  still  would  not 
be  the  rightful  trustees,  though  we  had  failed  to  show  that  the  proceed- 

48 


378  PRESBYTERIAN  CHURCH  CASE. 

ings  of  1837  were  good.  For  the  sake  of  the  argument,  I  might  concede 
that  those  proceedings  were  utterly  null  and  void.  Then  they  must  show 
that  their  proceedings  in  1838  were  perfectly  justifiable,  and  their  elec- 
tion of  trustees  valid.  Undoubtedly  this  is  the  most  essential  part  of  the 
case,  though  not  the  part  requiring  the  greatest  length  of  argument.  The 
question  is,  whether  Judge  Todd  and  the  other  relators  were  elected  to 
the  office  of  trustees  by  a  proper  General  Assembly.  They  do  not  pre- 
tend to  have  been  chosen  in  1837,  nor  in  1838,  until  a  portion  of  the 
Assembly,  separated  from  the  rest,  and  holding  its  sessions  in  the  church 
on  Washington  Square,  there  elected  them,  ijntil  they  have  shown  that 
this  proceeding  was  right,  and  the  election  regular,  the  chief  burden  of 
the  case  still  rests  on  their  shoulders. 

In  approaching  this  part  of  the  argument,  I  could  wish  that  I  were  pos- 
sessed of  a  glossary  or  key  to  the  phrases  that  have  been  used  by  the 
plaintiff's  counsel.  He  seems  to  have  argued  this  branch  of  his  case  with 
his  Ovid  in  his  hand,  and  influenced  alike  by  the  humour  and  the  powers 
of  metamorphosis  of  the  Roman  poet,  he  has  turned  almost  every  thing 
into  the  contrary  of  what  it  is,  and  what  he  has  not  so  treated,  he  has 
turned  into  a  joke.  Ministers  and  elders,  in  solemn  and  devout  assem- 
bly, have  been  represented  as  piquet  guards  in  martial  array — churches 
have  become  castles — black  coats  are  turned  into  red  coats — pacific  doc- 
tors are  made  knights  templars  or  hospitallers;  and  thread  bare  parsons 
are  converted  into  grim  visaged  warriors,  and  mounted  on  barbed  steeds, 
to  fright  the  souls  of  fearful  adversaries.  While  my  learned  friend  him- 
self, like  the  gallant  hero  of  La  Mancha,  couches  his  lance,  and  fiercely 
attacks  the  windmills,  which  have  become  giants,  in  his  excited  imagina- 
tion. Above  all,  he  discovers  a  phrase  of  the  mildest  and  most  inoffen- 
sive character,  addressed  by  the  chair  proper  to  a  speaker  improper,  and 
he  begrimes  it  into  a  denunciation  the  most  bitter  and  awful  that  the  fancy 
can  conceive.  It  is  almost  impossible  to  find  the  case,  so  lost  is  it  in  the 
imagery  of  my  learned  friend ;  but  I  will  endeavour  to  disengage  it,  and 
present  to  you  its  bare  facts  and  merits. 

Until  a  very  recent  day,  there  had  been  no  dispute  about  the  guardian- 
ship of  the  Church  funds.  For  fifty  years,  all  had  been  content  that  the 
venerable  gentleman,  who  has  been  so  frequently  mentioned,  should  have 
a  share  of  the  control  over  them:  all  had  been  united  in  placing  the  most 
unreserved  confidence  in  his  integrity,  piety,  and  good  judgment.  It  was 
left  for  our  opponents,  in  times  of  turbulence  and  strife,  to  quarrel  with 
him,  as  they  had  with  every  act  and  every  individual  of  the  friends  of 
order;  to  take  the  funds  out  of  the  hands  of  the  fathers  of  the  Church; 
to  turn  out  from  their  places  its  sages,  and  degrade  them,  as  totally  unfit 
for  office.  Could  any  good  come  out  of  such  proceedings?  Of  all  the 
scandals  which  of  late  years  the  Church  has  known,  none  is  to  be  com- 
pared to  that  which  had  its  origin  in  the  scenes  of  the  17th  of  May,  1838. 
We  have  seen  two  Christian  assemblies  sitting  at  the  same  moment,  each 
claiming  to  be  exclusively  the  General  Assembly,  each  denouncing  the 
pretensions  of  the  other,  asserting  itself  to  be  in  the  right,  and  its  oppo- 
nent in  the  wrong,  and  mingling  secular  disputes  with  their  religious 
exercises.  Your  business  is  to  determine  which  of  these  was  the  genuine 
body,  and  I  am  happy  that  we  all  agree  in  considering  this  as  the  essential 
(question  in  the  cause. 


MR.  INGERSOLL'S  ARGUMENT.  379 

When  the  Assembly  of  1S38  first  met,  Dr.  Elliott  was  certainly  the 
rightful  Moderator,  and  Mr,  Krebs  and  Dr.  McDowell  the  rightful  clerks. 
These  gentlemen,  with  the  rest  of  the  Old-school  brethren,  are  supposed, 
indeed,  to  have  conspired  to  usurp  the  best  places,  the  poets'  corner,  be- 
cause they  went  to  the  house  in  due  season.  Mr.  Preston  and  myself 
could  hardly  get  into  the  court  room,  this  morning,  but  we  have  not  yet 
thought  of  charging  any  of  the  auditors  previously  assembled  with  the 
guilt  of  conspirators.  There  was  a  moment  certainly,  on  that  third  Thurs- 
day of  May,  when  we  were  all,  without  doubt,  in  our  right  places.  This 
was  at  the  outset  of  the  proceedings.  That,  the  argument  of  our  oppo- 
nents must  admit.  We  were,  at  one  period  of  its  session,  a  part  of  the 
genuine  body — there  can  be  no  doubt  of  it:  we  had  all  been  duly  sum- 
moned twelve  months  before,  according  to  the  requirement  of  the  Con- 
stitution, and  attended  upon  that  solemn  call. 

"  Each  session  of  the  Assembly  shall  be  opened  and  closed  with 
prayer.  And  the  whole  business  of  the  Assembly  being  finished,  and 
the  vote  taken  for  dissolving  the  present  Assembly,  the  Moderator  shall 
say  from  the  chair — '  By  virtue  of  the  authority  delegated  to  me  by  the 
church,  let  this  General  Assembly  be  dissolved,  and  I  do  hereby  dissolve 
it,  and  require  another  General  Assembly,  chosen  in  the  same  manner, 
to  meet  at  on  the  day  of  A.  D.  ' — 

after  which  he  shall  pray  and  return  thanks,  and  pronounce  on  those  pre- 
sent the  apostolic  benediction. — Form  of  Gov.  Chap.  XII.  Sect.  8. 

The  members  of  the  Assembly  of  1837  went  in  peace.  Some  little 
question  has  been  suggested  as  to  the  effect  of  the  termination  of  the  one 
body  upon  the  assembling  of  the  second,  though  I  do  not  consider  this  a 
material  point.  The  termination  is  not  an  adjournment  but  resembles 
rather  a  dissolution,  though  not  for  all  purposes.  The  Moderator  of  the 
last  Assembly,  acting  under  its  authority,  always  takes  the  chair  at  the 
opening  of  the  new  session.  The  former,  by  anticipation,  gives  life  to  the 
latter.  A  like  thing  may  be  seen  in  the  succession  of  our  national  assem- 
blies. Each  House  of  Representatives  is  dissolved  at  the  end  of  its  short 
or  second  session;  yet  another  house  is  called  into  existence;  a  vital,  ger- 
minating principle  is  left  to  vivify  the  new  body;  rules  are  established 
for  its  organization,  to  avoid  the  disorder  incident  to  a  chaotic  assembly, 
governed  by  no  laws.  The  commissioners  to  the  Assembly  of  1838, 
after  being  duly  summoned,  duly  appeared,  with  authentic  vouchers  from 
their  respective  Presbyteries,  These  are  the  component  parts  as  regards 
the  Assembly.  In  its  formation  the  Synods  are  entirely  overlooked, 
though  as  church  councils  they  are  an  intermediation  between  the  Gene- 
ral Assembly  and  the  Presbyteries.  These  commissioners  came  duly 
selected  and  authorized;  they  assembled  at  the  appointed  time  and  place; 
and  as  the  constitution  requires,  their  meeting  was  opened  by  the  appro- 
priate religious  exercises,  and  admonitions,  and  by  a  solemn  address  to 
the  throne  of  grace.  These  preparative  steps  having  been  completed, 
there  ought  to  have  succeeded — it  was  hoped  that  there  would  succeed — 
a  harmonious  organization.  Thus  far  all  had  gone  on  smoothly:  the 
body  convened  in  the  Seventh  Church,  was  the  true  General  Assembly, 
at  least  until  the  reorganization  to  which  our  opponents  resorted  upon  the 
advice  of  counsel  learned  in  the  law — as  Dr.  Fisher  tells  us,  by  the  ad- 
vice of  many  different  counsel.     They  seemed  to  have  believed  that  in 


3gO  PRESBYTERIAN  CHURCH  CASE. 

the  variety  as  well  as  the  multitude  of  counsel  there  was  safety.  Like 
Medea  they  put  into  the  enchanted  kettle  a  mixture  of  different  ingre- 
dients— clerical  and  lay.  They  advised  with  others  and  acted  for  them- 
selves. A  great  mistake:  they  had  better  have  trusted  either  to  the  law 
or  the  Gospel  alone,  and  not  have  attempted  to  unite  the  two.  This 
effort  to  mingle  things  so  incongruous  produced  a  ripple  in  the  current  of 
proceedings,  and  threw  all  into  confusion.  The  late  Chief  Justice  Tilgh- 
man  once  mentioned  the  not  inappropriate  circumstance  of  a  gentleman, 
who  desirous  of  having  professional  assistance  in  preparing  his  will,  and 
yet  reluctant  to  reveal  his  intentions  to  any  one,  inquired  as  to  the  law 
and  then  undertook  to  apply  it  for  himself.  The  consequence  was  that 
the  substance  was  spoiled,  and  the  form  left  imperfect:  the  object  which 
he  intended  to  accomplish  was  defeated. 

We  have  now  reached  the  dividing  line  between  the  two  organizations. 
I  have  brought  the  proceedings  down  to  the  point,  when  the  sermon  hav- 
ing been  delivered,  and  the  constituting  prayer  offered,  the  Assembly 
was  ready  for  business.  What  was  the  first  business  to  be  done?  The 
rules  of  the  Assembly  are  clear  upon  this  point,  and  you  will  find  the 
proper  order  of  proceedings  exemplified,  if  you  will  take  up  any  of  the 
minutes  of  previous  years.  Here  are  the  minutes  of  1637,  the  first  that  I 
have  happened  to  lay  my  hands  upon. 

"  After  public  worship,  the  Assembly  was  constituted  with  prayer,  in  the 
Lecture  Room  of  the  Central  Church,  and  had  a  recess  until  four  o'clock. 

♦^  At  four  o'clock  the  Assembly  met. 

"  The  Standing  Committee  of  Commissions  reported  that  the  follow- 
ing persons  present  have  been  duly  appointed  commissioners  to  this 
General  Assembly,  viz." 

Then  follow  the  names  of  the  commissioners. 

"  The  committee  further  reported  that  Mr.  David  B.  Ayres,  a  ruling 
elder  from  the  Presbytery  of  Illinois,  had  appeared,  without  a  commis- 
sion; and  that  the  Rev.  Bliss  Burnap,  of  the  Presbytery  of  Champlain, 
and  Mr.  Henry  Brown,  a  ruling  elder  from  the  Presbytery  of  Lorain, 
had  presented  commissions,  without  the  signature  of  the  Moderator. 

"  These  cases  were  referred  to  Mr.  Cleaveland,  Mr.  Murray,  and 
Mr.  Ewing,  as  a  Committee  of  Elections.^' 

Here  are  the  minutes  of  1832. 

"  After  public  worship,  the  Assembly  was  constituted  with  prayer; 
and  then  had  a  recess  until  four  o'clock,  P.  M. 

"  At  four  o'clock,  P.  M.,  the  Assembly  met. 

"  The  Standing  Committee  of  Commissions  reported,  that  the  follow- 
ing persons  present,  have  been  duly  appointed  commissioners  to  this 
General  Assembly." 

Then  follow  the  names  as  before. 

"The  committee  further  reported,  that  Mr.  Samuel  Bayard,  a  ruling 
elder  from  the  Presbytery  of  New  Brunswick,  has  informed  them,  that 
he  was  appointed  a  commissioner,  but  had  not  his  commission  with  him; 
and,  also,  that  Mr.  William  Maxwell,  a  ruling  elder  from  the  Presbytery 
of  East  Hanover,  has  informed  them,  that  he  was  appointed  a  commis- 
sioner, but  had  not  received  his  commission. 

"  Dr.  Alexander,  Dr.  Hill,  and  Mr.  Bliss,  tuere  appointed  a  Com- 
mittee of  Elections,  and  these  cases  were  referred  to  them.'' 


MR.  INGERSOLL'S  ARGUMENT.  33  j 

I  don't  care  what  General  Assembly  you  refer  to,  the  opening  minute 
will  be  found  the  same.  Our  own  good  sense,  independently  of  the  tes- 
timony of  fact,  will  tell  us  that  such  must  be  the  course  of  proceeding. 
Such  it  has  been  in  the  organization  of  every  Assembly — every  one  lite- 
rally, excepting  that  of  1835,  and  there  the  process  was  substantially  the 
same.  Dr.  Miller  had  been  written  to  by  the  Moderator  of  the  last  year, 
who  was  prevented  from  attending,  and  he  preached  the  sermon.  Then 
Dr.  Beman  took  the  chair,  but  afterwards  another  was  put  in  his  place, 
and  the  business  proceeded  as  if  the  difficulty  had  never  arisen.  Still  the 
Minutes  of  1835  show  that  the  appointment  of  a  Committee  of  Elections 
preceded  all  other  business.  It  must  be  so  in  every  Assembly.  They 
show,  that,  after  things  had  been  restored  to  their  natural  state  by  Dr. 
McDowell's  taking  the  chair,  in  the  place  of  Dr.  Beman,  "  the  Rev. 
"Eliakim  Phelps,  J.  M.  Krebs,  and  Mr.  Charles  Starr,  were  appointed  a 
Committee  of  Elections,  and  the  cases  of  the  commissioners  above  re- 
ported were  referred  to  them."  Dr.  Hill's  testimony  was  perfectly  con- 
sistent with  this.  He  said  that  formerly  the  commissions  were  all  read 
in  the  Assembly;  but  that  the  body  became  too  large  for  this  to  be  done 
without  great  consum.ption  of  time,  and  that  therefore  a  Committee  of 
Commissions  had  always  of  late  years  been  appointed,  who  met  on  the 
morning  of  the  Assembly's  coming  together,  or  on  the  day  before,  and  in 
cases  where  there  was  no  doubt  reported  the  commissions  as  regular; 
but  that  all  doubtful  commissions  were  laid  aside  for  subsequent  examina- 
tion and  consideration.  In  1829  the  rule  was  adopted  which  refers  all 
the  commissions,  in  the  first  place,  to  the  clerks.  They,  however,  have 
no  absolute  authority  in  cases  of  doubt:  the  rule  orders  that  all  doubtful 
cases  be  referred  to  a  select  committee.  How  could  the  matter  be  other- 
wise ordered?  If  the  appointment  of  this  committee  were  not  the  first 
business,  what  infinite  wrong  might  be  done.  The  clerks  may  be  capri- 
cious in  their  rejection,  though  we  shall  show  that  there  was  no  caprice 
in  their  conduct  in  1838.  The  proper  time  then  for  the  examination  of 
doubtful  cases,  is  before  any  other  business  is  transacted:  then  the  claim- 
.  ants  who  have  been  rejected  by  the  clerks  have  a  right  to  be  heard:  the 
decision  of  the  matter  cannot  be  postponed.  The  appointment  of  a  Com- 
mittee of  Elections  must  precede  every  thing.  Common  sense,  the  ne- 
cessity and  propriety  of  the  case,  independently  of  all  rules  and  of  estab- 
lished usage,  must  so  determine. 

The  clerks  compose  the  preliminary  committee — the  Committee  of 
Commissions;  and  some  undisputed  members  of  the  house  compose  the 
Committee  of  Elections.  If  the  former  reject  any  commissioner,  an  ap- 
peal lies  to  the  latter.  What  was  the  condition  of  Mr.  Samuel  Bayard 
in  1832,  who,  as  appears  from  the  minute  I  read  a  moment  ago,  had  left 
his  commission  at  home  by  mistake?  The  clerks  say  to  him,  "We  can't 
help  that:  we  have  no  choice.  A  rule  is  prescribed  for  us,  and  we  must 
obey.  We  are  obliged  to  refuse  your  application,  but  we  refer  you  to 
the  house."  Suppose  Mr.  Bayard  respectfully  informs  them,  that  he  is 
very  anxious  to  be  admitted  immediately;  still  the  clerks  dare  not  over- 
look the  rule:  if  they  could  do  so,  they  might  as  partizans,  commit  great 
injustice.  He  must  come  before  the  house,  through  the  report  of  the 
Committee  of  Elections.  If  the  clerks  report  but  fourteen  members — 
the  number  which  the  Constitution  requires  for  the  transaction  of  busi- 


382  PRESBYTERIAN  CHURCH  CASE. 

ness,  which  Dr.  Fisher,  the  Moderator  of  the  New-school  Assembly  did 
not  happen  to  know — if  the  clerks  report  but  fourteen,  these  are  sufficient 
to  appoint  the  Committee  of  Elections.  There  is  at  present  no  danger 
that  a  majority  will  not  be  convened;  but  when  the  number  requisite  for  a 
quorum  was  fixed  at  fourteen,  the  body  was  much  smaller  than  now.  If 
only  fourteen  of  the  commissioners  are  reported  as  having  regular  com- 
missions, and  there  are  ten  times  fourteen  who  are  not  reported,  or  whose 
commissions  are  reported  doubtful,  the  latter  can  have  access  to  their  seats 
only  through  the  Committee  of  Elections,  specially  appointed  for  the  very 
purpose  of  taking  their  cases  into  consideration. 

We  have  come  then  to  the  most  important  stage  of  the  organization  of 
the  Assembly  of  1838 — the  period  when  the  regular  and  ordinary  course 
of  proceeding  was  interrupted  by  the  measures  of  the  New-school  party. 
Dr.  Elliott  was  perfectly  acquainted  with  the  law  and  practice^  but  the 
interference  of  these  gentlemen  prevented  for  a  time  his  putting  the  law 
in  execution,  and  on  their  heads  must  rest  the  blame.  I  shall  not  here 
repeat  what  has  been  so  well  said  by  my  much  abler  colleague.  I  shall  not 
attempt  to  follow  him  in  a  path  which  he  has  so  profusely  strown  with 
flowers.  The  interference  of  which  I  speak,  is  certainly  to  be  laid  to 
the  charge  of  the  New-school  party:  this  they  readily  acknowledge.  In- 
deed, the  plan  had  been  carefully  arranged  before-hand — not  only  before 
the  meeting,  but  a  long  time  before.  It  had  its  origin  in  the  "advice  of 
counsel  learned  in  the  law" — words  which  rung  in  the  ear  of  every  wit- 
ness, and  through  the  witnesses  have  rung  in  ours.  They  began  to  con- 
sult with  counsel  before  they  left  their  homes.  They  had  done  better, 
had  they  relied  upon  the  dictates  of  their  own  consciences.  Dr.  Patton 
laid  great  stress  on  his  being  particularly  desirous  that  his  motion  should 
be  acted  upon  at  that  time.  It  was  important  that  he  should  be  allowed 
to  make  it  just  then;  that  it  should  be  wedged  in  between  the  parts  of  a 
single  act.  He  said  twice,  that  he  was  particularly  anxious  that  the  mea- 
sure should  be  considered  at  that  precise  period — he  urged  the  Moderator 
to  entertain  his  resolutions  immediately.  That  was  the  opportune  mo- 
ment— the  moment,  which,  as  Mr.  Cleaveland  afterwards  explained,  had 
been  selected  under  the  advice  of  counsel  learned  in  the  law.  The  whole 
proceeding  of  the  New-school  was  premeditated.  For  this,  I  would  mere- 
ly appeal  to  Dr.  Hill  as  authority.  Though  not  a  neutral,  he  says  that 
during  the  preliminarj'-  discussions  on  the  subject,  he  had  unequivocally 
condemned  the  measures  then  proposed  and  afterwards  carried  out.  I 
suppose  this  was  when  they  met,  as  they  say,  in  open  convocation.  There 
was  no  harm  in  a  preliminary  meeting.  The  members  of  every  body  are 
accustomed  to  meet  in  private  caucus.  Where  all  concur,  all  assemble 
together:  where  there  are  two  or  more  parties,  each  party  holds  its  own 
meeting  of  arrangement.  I  cannot  see  any  great  harm  in  this.  These 
gentlemen  had  all,  as  it  seems,  been  consulting  lawyers  in  regard  to  the 
measures  proper  to  be  adopted,  and  in  the  preliminary  meeting  for  con- 
sultation, each  came  forward  and  laid  the  fruits  of  his  inquiry  upon  the 
altar.  But,  however  that  may  be,  Dr.  Hill  says  that  he  opposed  the  mea- 
sure. And  why  was  this?  He  feared  just  what  we  complain  of — a  great 
scandal,  a  riot!  Exactly  what  happened,  Dr.  Hill  tells  us  he  anticipated. 
They  come  now  into  court,  and  charge  us  with  noise  and  riot,  when  they 
came  to  that  house  prepared  to  perpetrate  an  act,  which  one  of  their  own 


MR.  INGERSOLL'S  ARGUMENT.  353 

party  declares,  threatened  and  was  calculated  to  produce  it  all.  Dr.  Hill 
expected  a  riot,  and  therefore  was  greatly  excited:  he  feared  that  the  pro- 
ceeding might  bring  disgrace  upon  the  Church.  He  was  so  excited,  that 
he  listened  most  eagerly  to  catch  every  sound;  and  says  that  the  burst  of 
ayes  was  indecently  "and  offensively  loud.  He  goes  further,  and  says  that 
he  was  surprised,  that,  as  the  Old-school  did  not  vote  down  the  measure, 
there  were  any  noes  at  all,  adding,  very  significantly,  that  at  least  they 
did  not  seem  to  be  very  well  trained,  or  drilled — perhaps  drilled  was  the 
word:  it  certainly  suits  Mr.  Meredith's  picture  of  the  Old-school  party 
drawn  up  in  military  array.  There  were,  it  seems,  a  parcel  of  noes — -just 
enough  to  contradict  the  assertion  made  upon  the  New-school  Minutes, 
that  the  vote  was  unanimous,  and  to  show  that  we  at  least  had  not  been 
prepared  by  any  great  degree  of  drilling.  A  further  elucidation  of  this 
matter  is  given  by  Dr.  Fisher,  who  was  the  Moderator  of  the  Assembly 
that  met  in  the  church  on  Washington  Square.  He  says  that  the  gentle- 
men of  the  Old-school  appeared  to  be  in  a  state  of  utter  astonishment — 
as  if  they  did  not  know  what  was  going  on.  It  is  said  that  there  is  no 
man  so  brave,  but  that  he  may  be  alarmed  by  a  sudden  and  unaccustomed 
danger.  The  Old-school  sat  still  in  mute  astonishment;  and  those  few 
individuals  who  cried  "No!"  were  not  well  drilled!  Yet  Mr.  Meredith 
styles  his  friends  the  '''unsuspecting  brethren!"  They  had  come  together 
with  their  brief  prepared,  and  with  learned  counsel  at  their  elbows;  they 
had  carefully  arranged  a  course  of  proceedings;  yet  they  are  quite  unsus- 
pecting; they  are  taken  by  surprise,  and  entirely  disconcerted!  In  their 
preliminary  meeting,  they  determine  to  organize  the  Assembly  in  their 
own  way,  at  that  particular  time  and  place;  but,  to  their  utter  surprise, 
they  find  that  Dr.  Elliott  don't  concur  in  their  views.  These  "  unsus- 
pecting brethren"  are  brought  at  last  to  the  confession,  that  they  came 
determined  to  break  up  the  Assembly  at  all  events. 

We  are  told  that  Dr.  Elliott  refused  to  do  his  duty;  that  Dr.  Patton 
had  a  right  to  rise,  and  make  a  motion;  that  his  motion  was  not  received, 
nor  his  appeal  regarded;  that  Dr.  Mason  in  like  manner  had  a  right  to  do 
what  he  did;  and  then  Mr.  Cleaveland  to  rise,  pronouncing  the  conduct 
of  the  Moderator  wrong,  propose  a  new  organization,  and  finally  walk  off 
surrounded  by  his  New-school  friends.  But  they  certainly  never  antici- 
pated Dr.  Elliott's  decision.  All  that  they  say  became  necessary  must 
have  become  so  accidentally;  for  Dr.  Elliott,  who  produced  the  actual 
crisis,  was  not  in  the  secret.  They  now  rest  their  proceedings  upon  the 
refusal  of  the  Moderator  to  put  an  appeal — a  thing  that  Dr.  Fisher,  and 
several  of  the  witnesses  have  told  you  was  entirely  unprecedented,  and 
could  not  have  been  anticipated.  Yet  their  determination  had  clearly 
been  formed;  the  paper  which  Mr.  Cleaveland  read  had  been  carefully 
prepared,  and  they  plainly  had  come  determined  to  break  up  our  Assem- 
bly at  all  hazards.  Their  proceedings  were  altogether  independent  of 
the  refusal  of  Dr.  Elliott  to  put  an  appeal.  This  was  a  mere  afterthought. 
They  were  entirely  disconcerted  by  this  refusal,  as  we  shall  see  in  a  sin- 
gle moment.  Dr.  Patton,  the  person  appointed  to  deal  the  first  blow, 
when  told  that  his  appeal  is  out  of  order,  sits  down  without  a  word — is 
put  out  and  yields.  Dr.  Mason,  the  next  actor  in  the  drama,  in  like 
manner  sits  down  utterly  disappointed,  and  unprepared  for  the  emer- 
gency.   Mr.  Cleaveland  does  not  rise  immediately.     These  three  were  in 


384  PRESBYTERIAN  CHURCH  CASE. 

a  pew  together,  united  in  one  purpose  closely  and  firmly  as  fate.  No 
doubt  it  had  been  fixed  beforehand  that  they  should  rise  in  order;  but 
Dr.  Elliott's  refusal  had  disconcerted  their  plans:  they  had  wished  and 
expected  the  Assembly  to  decide  against  the  commissioners  from  the  dis- 
owned Synods:  no  such  decision  being  made  by  the  Assembly,  there  was 
no  colour  for  withdrawing.  Mr.  Cleaveland  then  does  not  rise  immedi- 
ately upon  the  discomfiture  of  Dr.  Mason.  A  man  on  the  outside  of  the 
ranks,  where  nobody  was  at  hand  to  pull  him  down  if  he  was  wrong, 
next  arose.  This  was  poor  Mr.  Squier.  Like  the  donkey  in  the  fable, 
who  had  seen  the  lap-dog  fawning  upon  his  master,  he  thought  he  had  a 
right  to  get  up  too.  His  Honour  will  tell  you  he  had  no  right;  and  Dr. 
ElUott  told  him  the  same  and  nothing  more,  when  he  said,  "  we  don't 
know  you,  sir."  Mr.  Squier  rises,  however,  at  the  wrong  time,  and 
spoils  the  whole  proceeding. 

Next  rises  Mr.  Cleaveland  and  reads  his  paper.  Mr.  Cleaveland  and 
Dr.  Beman,  the  most  prominent  actors  in  the  scene,  are  not  here.  Even 
their  depositions  which  were  taken  have  not  been  read.  How  do  we 
know  the  fact  that  these  depositions  have  been  taken;  that  they  have 
been  from  the  first  in  the  hands  of  the  counsel,  and  yet  not  communicated 
to  the  jury?  These  were  the  only  men  that  could  have  settled  conclu- 
sively all  dispute  about  the  reversal  of  the  question;  they  alone  know 
certainly  whether  they  were  or  were  not  reversed.  They  can  say  posi- 
tively, "we  did,"  or  "  we  did  not,  reverse  the  questions."  The  other 
witnesses  can  only  tell  us  that  they  did,  or  did  not,  hear  the  reversal. 
Yet  these  men  are  not  produced;  and  their  depositions,  though  here  in 
court,  are  not  exhibited.  How,  I  ask,  do  we  know  this?  why  Dr.  Fatten 
told  us  so.  Otherwise  we  would  not  have  been  at  liberty  to  mention  the 
fact.  Dr.  Patton  was  asked  by  my  colleague,  Mr.  Hubbell,  "  Have  you 
read  the  depositions  of  Dr.  Beman  and  Mr.  Cleveland?"  Dr.  Patton  is 
evidently  a  non-committal  man,  and  he  answered,  "  I  have  seen  them." 
"But  seeing  is  not  reading.  Have  you  read  them?"  "  Yes,  I  have  read 
them."  You  know  then,  gentlemen,  that  these  depositions  have  been 
taken,  and  that  what  the  other  witnesses  could  know  but  imperfectly, 
Dr.  Beman  and  Mr.  Cleaveland  could  have  settled  conclusively.  Here 
were  their  depositions  in  the  hands  of  the  opposite  counsel,  or  circulating 
among  their  clients.  Dr.  Patton  read  them,  and  so  I  suppose  did  all  the 
New-school  witnesses;  yet  by  the  New-school  party  they  are  withheld, 
though  you  certainly  had  a  right  to  see  them.  The  other  side  had  no 
right  to  keep  these  back,  and  substitute  the  evidence  of  other  witnesses. 
It  is  a  well  established  maxim  of  the  law,  that  the  best  evidence  of  which 
the  case  admits  must  be  given.  What  was  the  best  evidence  here? 
Plainly  the  evidence  of  the  men  who  themselves  did  the  things  in  ques- 
tion. Why  was  not  this  ofiered  in  the  shape  of  the  depositions  taken? 
The  opposite  counsel  have  tried  to  get  out  of  tlie  diificulty,  by  asking 
witnesses  where  these  persons  are.  Certain  it  is  that  they  are  not  here 
to  pass  through  the  crucible  of  a  cross-examination.  It  appears  only  that 
one  has  gone  on  a  sea  voyage,  quite  recently;  and  that  the  other,  Mr. 
Cleveland,  is  at  Detroit;  though  it  has  not  been  said — the  counsel  well 
knew  it  was  not  so — that  their  testimony  was  therefore  inaccessible. 
Nothing  is  more  common  than  to  take  the  depositions  of  witnesses  that 
are  going  abroad;  and  we  send  even  to  China  to  take  them  there,  and  to 


MR.  INGERSOLL'S  ARGUMENT.  385 

almost  every  part  of  the  globe.  You  know,  however,  that  in  this  case  de- 
positions were  actually  taken — that  they  have  been  from  the  first  in  the 
possession  of  the  opposite  party.  Mr.  Cleaveland  read  a  paper  too,  upon 
the  language  of  whiqh  the  whole  case  may  eventually  turn.;  but  this  paper 
we  have  not  yet  seen.  As  to  some  of  the  phrases  which  it  contained  all 
are  agreed;  as  to  others  the  witnesses  differ;  the  whole,  nobody  has  been 
able  to  communicate.  If  Mr.  Cleaveland  had  been  examined  we  should 
know  certainly  whether  the  paper  could  or  could  not  be  produced.  But 
the  withholding  of  this  testimony  must  redound  to  their  own  mischief. 
"While  going  to  do  a  wrong,  they  fall  into  the  very  pit  prepared  for 
others.  May  I  here  be  allowed  to  apply  the  language  of  Sternhold  and 
Hopkins,  in  one  of  their  psalms? 

"He  digs  a  ditch,  and  delves  it  deep, 
In  hope  to  hurt  his  brother; 
But  he  shall  fall  into  the  pit. 
That  he  digged  up  for  other. 

"Thus  wrong  returneth  to  the  hurt 
Of  him  in  whom  it  bred; 
And  all  the  mischief  that  he  wrought, 
Shall  fall  upon  his  head." 

The  first  measure  of  importance  that  took  place  was  the  call  made  by 
the  Moderator.  For  what?  It  is  said  there  were  some  differences  in 
the  statements  of  the  different  witnesses.  These  were  not  material. 
But  there  is  a  gentleman  able  to  enlighten  us,  and  his  testimony,  I  be- 
lieve, was  given  with  propriety  and  candour.  That  gentleman  was  Dr. 
Mason.  Our  opponents  themselves  raised  this  point,  and  vouched  Dr. 
Mason  as  a  witness.  What  sort  of  commissions  had  the  Moderator 
called  for,  when  those  which  had  been  already  presented  to  the  clerks 
and  rejected,  were  offered  in  professed  answer  to  the  call?  Dr.  Mason 
certiiinly  knows  best  how  he  understood  the  call,  to  which  his  offer  is 
said  to  have  been  a  response,  and  his  understanding  of  it  shall  be  taken. 
He  says  that  the  Moderator  stated,  that  if  there  were  any  commissioners 
in  the  house  whose  commissions  had  not  been  presented.,  now  was  the 
time  to  present  them.  That  this  was  the  object  of  the  call  cannot  be 
doubted,  when  it  is  considered  that  the  commissions  to  be  presented  in 
accordance  with  it  were  to  be  referred  to  the  Committee  of  Commissions, 
and  not  to  the  Committee  of  Elections,  unless  after  the  former  had  re- 
ported unfavorably  upon  them.  It  was  intended  for  gentlemen  coming 
in  after  the  session  had  commenced.  You  recollect  that  one  such  was 
examined  as  a  witness  for  the  other  side.  He  arrived  at  the  last  moment, 
and  not  knowing  the  plans  of  the  New-school  really  voted,  no,  on  the 
first  question  put  by  Mr.  Cleaveland.  Like  Sir  Francis  Wronghead, 
who  doubted  that  he  had  cried,  no,  when  he  ought  to  have  cried,  aye. 
He  was  a  country  member  and  had  not  been  properly  drilled.  There 
were  others  dropping  in  in  like  manner,  and  the  Moderator's  call  was 
intended  for  such — those  who  had  not  had  an  opportunity  of  presenting 
their  commissions  to  the  clerks.  I  am  perfectly  content  to  take  Dr. 
Mason's  testimony.  Mr.  Hubbell  reminds  me  that  Mr.  Meredith  was 
mistaken  as  to  Dr.  Elliott's  testimony  upon  this  point.  Dr.  Elliott 
agrees  with  Dr.  Mason  in  regard  to  the  language  of  his  call:  there  is  no 

49 


386  PRESBYTERIAN  CHURCH  CASE. 

material  difference  between  the  two  witnesses.  But  we  have  from  Dr. 
Mason  a  candid  acknowledgment  that  he  did  not  consider  his  offer  a 
response  to  the  call  of  the  Moderator;  that  he  understood  that  call  to  be 
for  commissions  which  had  not  yet  been  presented. 

There  is  another  thing  which  it  is  necessary  that  you  should  recollect. 
It  seems  that  there  was  at  least  one  individual  the  Rev.  Mr.  Moore,  who 
came  forward,  upon  the  call  of  the  Moderator,  to  present  his  commis- 
sion, which  he  had  not  before  had  an  opportunity  to  present.  I  re- 
fer you  for  an  explanation  of  this  matter  to  the  testimony  of  Dr. 
Elliott  and  Mr.  Krebs.  It  seems  that  Mr.  Moore  came  in  at  a  late 
hour,  and  upon  the  call's  being  made,  rose  ^  and  walked  forward  to 
the  clerks'  table,  but  he  found  that  his  commission  had  in  his  haste 
been  left  behind.  He  went  back  to  his  lodgings  for  it,  and  actually 
presented  it  at  a  subsequent  stage  of  the  proceedings.  He  rose  to  re- 
spond to  Dr.  Elliott's  call,  and  he  certainly  had  a  right  by  virtue  of 
the  rules  of  the  Assembly,  to  demand  that  his  name  should  be  en- 
rolled at  that  moment,  and  before  any  other  measure  -was  adopted.  But 
at  the  same  moment  Dr.  Mason  rises  and  interposes  his  offer  and  resolu- 
tion. 

(Here  the  jury  were  allowed  a  recess  often  minutes.) 

I  hold  in  my  hand  the  rules  adopted  in  1826,  to  which  Dr.  Hill  in 
his  testimony  referred. 

Mr.  Ingersoll  read  the  rules. —  Vid.  ante.  p.  156. 

The  appointment  of  this  Committee  of  Elections  was  the  thing  in  or- 
der. It  was  prevented  by  the  proceedings  of  the  New-school,  which 
assumed  the  principle  that  all  the  commissioners  present  had  a  right  to 
vote,  in  the  first  instance,  whether  their  commissions  had  been  examined 
by  the  clerks  or  not.  Now  suppose  two  persons  came  to  the  Assembly 
both  claiming  the  same  seat.  There  are  a  principal  and  alternate  named 
in  each  commission:  suppose  that  in  some  case,  these  two,  travelling  by 
different  roads  had  arrived  in  Philadelphia,  and  on  the  usual  question 
being  put  to  them,  each  should  claim  a  place.  Of  course  the  matter  must 
be  referred  to  a  committee — the  Committee  of  Elections.  This  is  the 
case  in  every  deliberative  assembly.  And  the  committee  though  it  may 
be  immediately  appointed  cannot  always  immediately  report:  for  obvious 
reasons  considerable  time  is  sometimes  consumed  in  the  examination  of 
the  case.  In  Congress,  frequently,  half  a  session  passes  while  the  right 
to  a  seat  is  under  dispute,  and  in  the  mean  time  the  individual  holding 
the  formal  commission,  keeps  the  place  to  the  exclusion  of  his  antagonist, 
though  the  latter  may  eventually  prove  himself  entitled  to  it.  The  cir- 
cumstance of  the  committee's  not  being  able  to  report  immediately,  though 
it  may  be  a  great  inconvenience  and  hardship  to  the  rightful  claimant, 
certainly  will  not  justify  his  rising  upon  the  floor  and  demanding  his  seat, 
or  seizing  upon  it  before  the  committee  has  decided.  Always,  since  the 
adoption  of  the  rules  which  I  have  read,  until  the  year  1838,  the  appoint- 
ment of  a  Committee  of  Elections  has  been  the  very  first  business  after 
the  doubtful  commissions  have  been  reported  by  the  clerks  and  laid  upon 
the  table:  there  never  before  had  been  an  attempt  made  to  set  aside  the 
established  order. 

While  Mr.  Moore  was  thus  walking  forward  to  present  his  commis 
sion,  another  gentleman  rose  and  offered  a  bundle  of  commissions,  which 


MR.  INGERSOLL'S  ARGUMENT.  3§7 

he  knew  perfectly  well  were  not  of  the  kind  for  which  the  Moderator 
had  called;  for  he  has  sworn  that  he  understood  that  call  to  be  for  com- 
missions that  had  not  yet  been  presented.  Dr.  Mason  rises,  and  presents 
certain  commissions.  He  knew  very  well  that  he  and  his  coadjutors 
were  engaged  in  an  attempt  at  revolution:  they  meant  to  violate  the  es- 
tablished order.  He  deliberately  trampled  on  the  rights  of  every  com- 
missioner in  the  house,  who  had  not  had  an  opportunity  of  presenting  his 
commission  to  the  clerks.  All  the  witnesses  who  have  testified  as  to  this 
point,  agree,  that  there  was  at  least  one  such — Mr.  Moore — and  that  is 
sufficient  for  our  argument.  Dr.  Mason  himself  says  the  Moderator  call- 
ed for  one  sort  of  commissions,  and  that  he  immediately  rose  and  pre- 
sented a  hat  full  of  another  sort.  Then  he  clearly  violated  his  duty,  un- 
less his  duty  was  to  make  a  revolution.  He  was  called  to  order,  and 
told  that  his  motion  was  out  of  time.  When  a  man  is  on  the  floor,  and 
another  rises  saying,  "  I  rise  to  order,"  instantly  the  former  must  take 
his  seat,  and  await  the  decision  of  the  question  of  order.  Nothing 
will  justify  a  disregard  of  this  rule;  in  enforcing  it  the  Moderator  is  a 
mere  organ  of  the  house:  it  is  not  his  law  but  the  law  of  the  house. 
When  king  Charles  I.  in  the  course  of  those  proceedings  which  at  length 
brought  his  head  to  the  block,  entered  the  House  of  Commons  and  took 
the  Speaker's  chair,  all  the  members  sat  dumb;  and  when  he  asked, 
"Is'nt  there  a  quorum  present?"  "May  it  please  your  majesty,"  replied 
the  Speaker,  "  1  have  no  eyes  or  ears  until  I  take  the  Speaker's  place." 

The  Moderator  had  no  choice:  he  was  bound  to  enforce  the  law  pre- 
scribed by  the  house,  of  which  he  was  the  mere  servant — the  eyes,  the 
ears,  and  the  hands.  Dr.  Mason  appealed  from  his  decision,  that  appeal 
also  was  declared  out  of  order;  he  then  acquiesced,  and  instead  of  raising 
a  question  of  privilege,  took  his  seat.  He  had  got  through  the  ABC 
of  his  instructions,  and  could  go  no  farther,  an  unexpected  difficulty 
having  risen.  Thus  two  of  the  confederates  had  been  disposed  of.  Mr. 
Squier  came  next,  and  then  the  proceedings  by  which  our  opponents  say 
Dr.  Elliott  was  turned  out  of  office.  There  is  a  curious  case,  reported  in 
Croke  Charles,  181,  which  happens  only  to  be  the  converse  of  the  present. 
It  was  the  case  of  an  information  against  Sir  John  Elliot,  Denzell  Hollis, 
and  Benjamin  Valentine,  not  for  attempting  to  put  the  speaker  out  of  the 
chair,  but  for  conspiring  to  keep  him  in  the  chair.  Professor  Maclean 
will  be  amused  with  the  latin  of  the  reporter,  which  is  something  like 
that  of  one  of  the  witnesses  who  could  not  recollect  the  "  very  ipsissima 
words"  of  Dr.  Elliott. 

"AN  INFORMATION  was  exhibited  against  the  defendants  by 
THE  Attornet  General,  reciting,  'That  a  Parliament  was  summoned 
to  be  held  at  Westminster,  decimo  septimo  Martii,  tei'tio  Caroli 
regis  ibid,  inchoat.  and  that  Sir  John  Elliot  was  duly  elected,  and 
returned  knight  for  the  county  of  Cornwall,  and  the  other  two  bur- 
gesses of  parliament  for  other  places,  and  Sii^  John  Finch  chosen  speak- 
er; that  Sir  John  Elliot,  '  macA/nan-s  et  intendens,  omnibus  viis  et 
modis  seminare  et  excitare,  discord,  evil  will,  murmurings,  and  sedi- 
tions as  well  versus  regem,  magnates, prselatos,proceres,  et  justiciarios 
suos,  quam  inter  magnates,  proceres,  et  justiciarios,  et  reliquos  sub- 
ditos  regis,  et  totaliter  deprivare  et  avertere  regimen  et  gubernation- 
em  regni  Angliae  tayn  in  domino  rege  quam  in  consiliariis  et  min- 


388  PRESBYTERIAN  CHURCH  CASE. 

istris  suis  cujuscunque  generis,  et  introducere  tumultum  et  confu- 
sionem  in  all  estates  and  parts,  et  ad  intentionem  that  all  the  king's 
subjects  should  withdraw  their,  affections  from  the  king,  the  twenty-third 
of  February,  anno  quarto  Caroli,  in  the  parliament  and  hearing  of 
the  Commons,  falsa,  malitiose,  et  seditiose,  used  these  words,  '  The 
king's  privy  council,  his  judges,  and  his  counsel  learned,  have  conspired 
together  to  trample  under  their  feet  the  liberties  of  the  subjects  of  this 
realm  and  the  liberties  of  this  house.'  And  afterward,  upon  the  second 
of  March,  anno  quarto  aforesaid,  the  king  appointed  the  parliament  to 
be  adjourned  until  the  tenth  of  March  next  following,  and  so  signified 
his  pleasure  to  the  house  of  commons;  and  Ihat  the  three  defendants, 
the  said  second  day  of  March,  4  Car.  1,  malitiose  agreed,  and  amongst 
themselves  conspired  to  disturb  and  distract  the  commons,  that  they 
should  not  adjourn  themselves  according  to  the  king's  pleasure  before 
signified;  and  that  the  said  Sir  John  Elliot,  according  to  the  conspira- 
cy and  agreement  aforesaid,  had  maliciously,  i7i  propositum  et  inten- 
tionem prsedict.  in  the  house  of  commons  aforesaid,  spoken  these  false, 
malicious,  pernicious,  and  seditious  words  precedent,  &c.;  and  that  the 
said  Benzell  Mollis,  according  to  the  agreement  and  conspiracy  afore- 
said between  him  and  the  other  defendants,  then  and  there  falso,  mali- 
tiose, et  seditiose,  uttered  hxc  falsa,  malitiosa,  et  scandalosa  verba 
prsecedentia,  Sfc;  and  that  the  said  Denzell  Hollis  and  Benjamin 
Valentine,  secundum,  agreamentum  et  conspirationem  prsedict.  et 
ad  intentionem,  et  propositum  prsedict.  uttered  these  words  upon  the 
second  day  of  March  after  the  signifying  the  King's  pleasure  to  adjourn; 
and  the  said  Sir  John  Finch  the  speaker  endeavouring  to  get  out  of  the 
chair  according  to  the  king's  command,  they  vi  et  armis,  manu  forti 
et  illicito,  assaulted,  evil  intreated,  and  forcibly  detained  him  in  the  chair; 
and  afterwards,  he  being  out  of  the  chair,  they  assaulted  him  in  the  house 
and  evil  intreated  him,  et  violenter  manu  forti  et  illicito  drew  him  to 
the  chair  and  thrust  him  into  it,  whereupon  there  was  great  tumult  and 
commotion  in  the  house,  to  the  great  terror  of  the  commons  there  assem- 
bled, against  their  allegiance,  m  maximum  contemptum,  and  to  the 
disherison  of  the  king,  his  crown  and  dignity:  for  which,  &c." 

This  was  something  like  the  course  pursued  in  the  church  in  Ranstead 
Court,  except,  as  I  have  said,  that  the  conspirators  attempted  to  keep  Sir 
John  Finch  in  the  chair,  instead  of  putting  him  out.  The  consequences 
too  were  a  little  different.  While  the  New-school  men  got  off  without  suf- 
fering any  penalty,  hear  what  became  of  Sir  John  Elliot  and  his  friends. 

"  Afterwards  divers  rules  being  given  them  to  plead,  and  they  refusing 
judgment  was  given  against  them,  viz:  against  Sir  John  Elliot,  that  he 
should  be  committed  to  the  Tower,  and  should  pay  two  thousand  pounds 
fine,  and  upon  his  enlargement  should  find  sureties  for  his  good  behaviour 
and  against  Hollis  that  he  should  pay  a  thousand  marks,  and  should 
be  imprisoned  and  find  sureties,  &c.;  and  against  Valentine,  that  he 
should  pay  five  hundred  pounds  fine,  be  imprisoned,  and  find  sureties." 

Now,  if  Dr.  Beman  and  Mr.  Cleaveland  had  suffered  such  punish- 
ment, that  would  be  some  reason  for  their  not  being  here  to  testify; 
though  it  would  hardly  account  for  the  absence  of  their  depositions. 

A  word,  and  but  a  word,  in  regard  to  another  matter;  for  I  shall  not 
repeat  what  my  colleague  has  already  so  ably  said.     I  want  to  know, 


MR.  INGERSOLL'S  ARGUMENT.  3g9 

gentlemen,  what  language  could  have  been  more  kind,  decent  and  for- 
bearing, then  the  language  of  the  Moderator  to  Mr.  Squier,  He  did  not 
tell  him  to  sit  down,  or  to  begone  from  the  place  to  which  he  had  no 
shadow  of  a  claim.  He  says  simply  "We  do  not  know  you,  sir" — evi- 
dently meaning,  "  You  are  not  a  recognised  member."  He  did  not 
mean  to  utter  that  terrible  denunciation  imputed  to  him  by  Mr.  Mere- 
dith, The  addition  of  the  word  "sir,"  to  which  most  of  the  witnesses 
swear,  removes  all  difficulty  in  interpreting  the  language.  Mr.  Meredith 
endeavours  to  make  a  goat  of  Mr.  Squier,  but  certainly,  Dr.  Elliott,  with 
all  his  courtesy,  would  not  in  addressing  a  goat,  have  treated  him  so  en- 
tirely like  a  gentleman. 

These  gentlemen  come  like  shadows,  so  depart.  You  see  that  I  am 
only  gleaning:  the  harvest  has  been  already  reaped.  Next  came  Mr. 
Cleave'land's  turn,  and  he  was  guilty  of  a  flagrant  violation  of  order  in  not 
addressing  the  Moderator.  That  rule  every  body  understands:  if  he 
had  been  a  mere  novice  in  the  parliamentary  school,  he  must  have  been 
aware  that  on  rising  he  should  address  himself  to  the  presiding  officer. 
In  the  House  of  Representatives,  in  each  state  legislature,  in  almost  all 
parliamentary  bodies,  this  rule  prevails.  The  speaker  of  any  of  them 
will  not  listen  to  a  member  or  give  him  the  floor,  if  he  does  not  preface 
his  remarks  by  "  Mr,  Speaker,"  I  will  read  the  rule  of  the  Assembly 
upon  this  subject, 

"  Every  member  when  speaking  shall  address  himself  to  the  modera- 
tor, and  shall  treat  his  fellow  members,  and  especially  the  moderator  with 
decorum  and  respect,"     Jjppend.  to  Const.  R.  21, 

Now,  Mr,  Cleaveland  did  not  obey  this  law:  all  the  witnesses  concur 
upon  that  point.  Dr.  Fisher,  especially,  gives  distinct  testimony  that  he 
did  not  address  the  Moderator;  who  therefore  was  bound  to  pay  no  at- 
tention to  him:  he  never  had  the  floor;  he  never  made  a  motion  at  all. 
What  the  others  did,  he  did  not:  he  don't  pretend  that  he  did  it.  The 
act  of  Mr.  Cleaveland  was  the  great  act  of  the  drama:  he  struck  the  first 
decisive  blow;  and  if  that  was  improperly  directed,  nothing  at  all  was 
accomplished.  If  the  initiatory  proceeding  was  out  of  order,  the  whole 
was  of  the  same  character.  If  Mr.  Cleaveland  did  not  address  the  Mod- 
erator— and  that  he  did  not  mean  to  address  him  is  evident;  for  though 
he  at  first  looked  towards  him,  he  soon  turned  his  face  away  to  the  west 
side  of  the  house — he  no  more  had  the  floor  than  a  boy  who  had  been 
sent  to  carry  a  glass  of  water  to  a  member,  or  than  the  serjeant-at-arms 
when  proceeding  to  make  an  arrest.  There  is  one  well  known  exception 
to  the  general  rule.  In  the  British  House  of  Lords,  a  speaker  on  rising 
addresses  his  assembled  peers,  and  not  the  Lord  Chancellor  who  presides. 
In  almost  every  other  deliberative  body  the  presiding  officer  is  addressed. 
But  farther,  it  is  in  evidence  that  Mr.  Cleaveland  said,  that  it  was  no 
matter  in  what  part  of  the  hou.se  the  organization  should  take  place. 
They  had  been  advised  by  counsel  that  it  must  take  place  then  and  there — 
they  acknowledge  the  necessity,  and  yet  practically  disregard  it. 

The  next  position  which  I  take  is,  that  the  question  proposed  by  Mr. 
Cleaveland  was  an  impracticable  question.  He  not  only  had  not  the 
floor,  or  the  right  to  put  any  question  at  all,  but  that  which  he  did  put 
was  utterly  impracticable.  I  do  not  intend  now  to  discuss  the  position  of 
the  chair — whether  that  was  in  the  middle  or  at  the  head  of  the  aisle — or 


390  PRESBYTERIAN  CHURCH   CASE. 

whether  it  was  moved  that  Dr.  Beman  should  be  Moderator,  or  that  he 
should  take  the  chair.  But  there  is  certainly  no  doubt  that  there  cannot 
be  two  presiding  officers  in-  the  same  Assembly  at  the  same  moment. 
When  it  is  moved  that  Dr.  Beman  shall  take  the  chair,  while  Dr.  Elliott, 
whose  removal  is  contemplated,  is  still  in  it,  the  natural  question  is  that 
of  king  Richard,  "  Is  the  chair  empty?"  "  Is  the  throne  deserted?"  "  Is 
the  king  dead?"  You  may  first  degrade  a  monarch,  and  then  seize  his 
sceptre.  Cromwell  did  not  usurp  the  sovereign  power,  until  Charles  I. 
had  been  brought  to  the  block.  Usurpation  followed  the  dethronement 
of  Louis  XVI.  It  is  impossible  that  two  persons  should  occupy  the  same 
place  at  the  same  moment.  There  cannot  be  two  Presidents  of  the  Uni- 
ted States  in  office  at  once.  Two  stars  hold  not  their  motion  in  one 
sphere.  Mr.  Cleaveland  could  not  attain  any  practical  result  at  a  single 
leap:  he  must  proceed  by  certain  regular  steps.  In  the  first  place,  the 
old  Moderator  was  to  be  removed.  This  having  been  done,  the  chair 
would  have  been  empty,  and  a  motion  to  put  Dr.  Beman  in  it  in  order, 
though  the  question  could  have  been  put  only  by  the  clerk.  The  motion 
made,  therefore,  was  perfectly  impracticable  and  premature. 

But  they  proceed  to  induct  the  new  Moderator  into  office  without  the 
necessary  preliminaries  which  the  rules  prescribe.  This  point  I  shall  al- 
lude to  in  very  general  terms:  it  is  of  great  importance  that  it  should  not 
be  altogether  overlooked.  Whenever  a  new  Moderator  is  chosen,  no 
matter  under  what  circumstances,  the  former  Moderator  must  instruct 
him  in  his  duty  of  submission  to  the  rules  of  the  Assembly,  without  this, 
he  is  no  Moderator  at  all. 

"A  Moderator  having  been  duly  chosen,  the  former  Moderator  before 
he  resigns  his  seat,  addresses  him  and  the  Assembly  thus: 

"  Sir — It  is  my  duty  to  inform  you  and  announce  to  this  house,  that 
you  are  duly  elected  to  the  office  of  Moderator  in  this  General  Assembly. 
For  your  direction  in  office,  and  for  the  direction  of  this  Assembly  in  all 
your  deliberations,  before  I  leave  this  seat,  I  am  to  read  to  you  and  this 
house  the  rules  contained  in  the  records  of  this  Assembly;  which  I  doubt 
not  will  be  carefully  observed  by  both,  in  conducting  the  business  that 
may  come  before  you."     Assem.  Dig.  p.  17. 

Then  comes  a  long  string  of  rules,  occupying  three  pages  in  the  Digest, 
every  page,  line,  and  letter  of  which  are  to  be  read  to  every  new  Mode- 
rator.    Then  the  former  Moderator  is  to  say, 

"Now,  having  read  these  rules,  according  to  order,  for)'Our  instruction 
as  Moderator,  and  for  the  direction  of  all  the  members,  in  the  manage- 
ment of  business — praying  that  Almighty  God  may  direct  and  bless  all 
the  deliberations  of  this  Assembly  for  the  glory  of  his  name,  and  for  the 
edification  and  comfort  of  the  Presbyterian  Church  in  the  United  States — 
I  resign  my  place  and  office  as  Moderator." 

Now,  how  long  would  it  take  to  read  these  three  pages  of  rules  to 
a  new  Moderator,  however  rapidly  it  might  be  done.  Here  were  two 
new  Moderators,  as  it  is  alleged — Dr.  Beman  first  and  Dr.  Fisher  second; 
but  to  neither  of  them  was  one  word  of  the  rules  read.  Dr.  Fisher  says, 
"  Dr.  Beman  told  me  that  my  conduct  was  to  be  governed  by  the  rules 
thereafter  adopted;"  but  Dr.  Fisher  did  not  know  how  many  members 
made  a  quorum.  No  man  could  be  acquainted  with  the  regulations  of 
any  house  without  time  and  attention — close  and  re-invigorated  attention. 


MR.  INGERSOLL'S  ARGUMENT.  39  £ 

Dr.  Fisher  seems  to  have  known  nothing  about  them.  The  provision  for 
thus  having  them  read  to  each  new  Moderator,  supposes  such  a  deficiency 
of  knowledge:  they  are  to  be  brought  before  each,  line  upon  line,  pre- 
cept upon  precept:  in  this  case,  they  were  all  omitted.  In  every  such 
proceeding  there  must  be  a  connected  chaiii,  and  each  link  must  be  firm 
and  secure,  or  the  whole  falls  to  pieces.  Our  opponents  must  show  that 
their  revolution  was  regularly  and  legally  effected,  since  they  choose  to 
claim  for  revolution  the  sanction  of  law. 

Next,  it  is  at  least  a  matter  of  doubt,  whether,  in  point  of  fact,  the  vari- 
ous questions  were  reversed.  I  do  not  consider  this  a  very  important 
matter,  but  the  opposite  counsel  seem  to  rest  much  upon  it.  I  say,  it  is 
at  least  doubtful  whether  the  questions  were  reversed;  and  we  certainly 
are  not  to  be  ousted  upon  a  doubt.  The  testimony  against  the  fact  of 
reversal  is  not  merely  negative,  as  my  learned  friend  would  have  you 
believe:  this  is  a  great  mistake.  Mr.  Lowrie,  who  has  been  long  actively 
engaged  in  legislative  bodies,  who  was  eleven  years  secretary  of  the  United 
States'  Senate,  tells  us  that  he  is  confident  the  question  was  not  reversed, 
for  there  was  not  sufficient  time  for  the  reversal.  Here  then  are  two  posi- 
tive contradictory  assertions,  though  I  feel  sure  that  there  is  no  perjury 
on  either  side.  One  says  that  the  question  was  reversed:  another,  that 
there  was  not  time  for  the  negative  to  be  put.  We  are  told,  that  when 
sounds  become  familiar,  they  do  not  impress  the  recollection;  that  when 
a  sound  is  expected,  as  a  thing  of  course,  it  is  apt  to  pass  unheeded;  and 
the  striking  of  the  clock  above  us  is  given  in  example.  Permit  me  to 
observe,  that  the  philosophy  and  theory  of  sound  are  not  as  has  been 
stated.  It  is  the  monotony  of  a  sound  which  produces  the  effect  described. 
A  monotonous  sound  tranquillizes  and  lulls  to  sleep,  as,  for  example,  the 
pattering  of  rain,  or  the  noise  of  the  sea  dashing  against  the  shore,  or 
against  a  ship.  It  is  on  account  of  this  monotony  and  regularity  that 
the  hourly  striking  of  the  clock  fails  to  arrest  attention.  This  fact  was 
exemplified  the  other  day,  when  my  colleague  was  speaking.  The  whole 
house  were  listening  to  him  with  wrapt  attention,  charmed  by  the  force 
and  beauty  of  his  eloquence;  when,  suddenly,  the  very  bell  that  tells  un- 
heeded the  passing  hours,  sounded,  in  a  different  tone,  the  alarm  of  fire, 
and  all  heard  it  in  a  moment.  We  heard  the  first  unusual  stroke  of  the 
familiar  bell,  and  many  flocked  down  from  the  court-room.  On  the  same 
principle,  it  is  said,  that  during  some  of  the  continental  wars,  the  life  of  a 
sentinel,  who  was  charged  with  sleeping  on  his  post,  was  saved  by  a  dis- 
tant clock's  having  struck  at  midnight  thirteen,  instead  of  twelve.  His 
annunciation  of  this  unusual  fact  proved  his  watchfulness,  while  the  ordi- 
nary tolling  of  the  midnight  bell  would  probably  have  escaped  his  notice. 

There  are  two  persons  whose  testimony  would  conclusively  settle  this 
question  of  tlie  reversal — would  place  the  matter  beyond  dispute.  They 
alone  who  put  the  motions  in  the  affirmative,  and  in  the  negative — if  in- 
deed they  were  put  in  the  negative  at  all — can  satisfactorily  establish  the 
fact.     But  unfortunately  they  are  both  absent. 

Gentlemen,  there  is  one  point  in  regard  to  which  I  have  no  doubt  all 
of  you  will  agree.  Whether  the  several  questions  were  reversed  may  be 
doubtful,  but  whether  a  fundamental  right  of  the  members  of  every  de- 
liberate body — the  right  of  debate,  was  extended  to  the  members  of  the 
Assembly  in  this  instance,  is  not  at  all  dubious.     No  opportunity  was 


392 


PRESBYTERIAN  CHURCH  CASE. 


given  to  debate  these  most  extraordinary  motions:  no  one  of  the  witnesses 
has  sworn  that  such  opportunity  was  afforded.  They  followed  each  other 
in  such  quick  succession,  that  a  gentlemen  skilled  in  legislative  proceed- 
ings says  there  was  not  time  for  the  reverse  to  be  put:  of  course  there 
was  no  time  allowed  for  debate.  Yet  that  every  member  of  such  a  body 
has  a  right  to  debate  questions  like  these,  no  one  can  for  a  moment  doubt. 
Those  who  murmur  because  in  1837  the  discussion  of  certain  resolutions 
was  closed  by  the  previous  question,  after  days  of  deliberation,  would 
not  allow  us  hours — no,  not  even  minutes  or  seconds,  to  deliberate  upon 
these  all  important  subjects.  If  the  questions  were  reversed,  they  were 
reversed  instantaneously.  Mr.  Cleaveland  did  not  give  time  for  debate, 
or  ask,  "Are  you  ready  for  the  question  ?"  or  receive  a  call  for  the  ques- 
tion, and  put  it  distinctly,  first  in  the  affirmative,  and  then  in  the  nega- 
tive. In  direct  violation  of  the  rights  of  the  members  to  whom  it  is  said 
to  have  been  addressed,  all  opportunity  for  debate  was  denied — debate 
which  is  the  very  essence  of  deliberation.  If  no  opportunity  was  given 
for  debate,  the  Assembly  ceased,  for  the  time,  to  be  a  deliberative  bodjr. 

A  word  or  two  upon  a  point  which  has  been  already  urged  by  my 
colleague:  supposing  the  question  to  have  been,  in  point  of  fact,  reversed — 
did  those  who  must  have  voted  in  the  negative,  if  they  had  voted  at 
all,  hear  the  negative  put,  or  know  that  it  was  put?  Make  an  inquiry 
of  a  sleeping  man,  and  there  will  be  no  answer;  of  a  paralysed  man,  and 
there  will  be  no  answer;  above  all  of  a  dead  man — you  will  receive  no 
answer.  Every  one  of  these  men  might  as  well  have  been  dead,  so  far 
as  regards  hearing  these  questions.  All  who,  as  we  may  suppose,  were 
to  vote  in  the  negative,  and  who,  undoubtedly,  were  a  large  majority — 
all  of  them  whom  we  have  examined,  say,  "  We  did  not  hear  the  ques- 
tion reversed:  we  could  not  have  voted  if  we  had  desired."  The  wit- 
nesses on  the  other  side  say  indeed  that  they  heard;  but  are  you  to  put 
the  hearing  of  A  for  the  hearing  of  B?  Besides,  the  New-school  party 
were  near  Mr.  Cleaveland  and  Dr.  Beman — immediately  surrounding 
them.  Dr.  Hill  says  that  he  was  near  enough  to  Mr.  Cleaveland  to  have 
put  his  hand  upon  his  shoulder.  The  little  clique  that  was  collected 
round  the  main  actors  may,  naturally  enough,  have  heard  and  seen  what 
was  not  perceived  by  individuals,  sitting,  as  most  of  the  Old-school  party 
were,  at  a  distance.  There  is  not  any  discrepance  in  the  testimony  of 
the  Old-school  upon  this  point:  all  of  them,  to  a  man,  have  declared  that 
they  did  not  hear.  What  has  been  said  about  Dr.  McDowell's  not  giving 
testimony  on  this  point  is  completely  answered,  when  we  show  that  he 
was  not  a  member  of  the  Assembly — only  a  clerk.  For  when  the  ques- 
tion is  whether  a  motion  or  reversal  was  distinct  enough  for  an  intelli- 
gent vote  by  the  whole  house,  we  need  only  ask  those  entitled  to  vote 
whether  they  heard  it.  Dr.  McDowell's  testimony,  whatever  it  might 
have  been,  would  not  have  reached  this  substantive  point:  he  had  no 
right  to  vote.  The  fact,  however,  was  that  the  inquiry  had  been  before 
pushed  to  satiety;  his  honour  the  judge  seemed  to  fear  that  the  case  would 
be  interminable;  therefore  scarcely  any  witness  was  allowed  to  go  over 
the  whole  ground.  A  doubt  as  to  this  matter  were  enough;  but  there 
can  be  no  doubt  that  a  great  number  of  those  who  were  entitled  to  vote, 
had  no  power  to  exercise  their  right.  One  fact  can  hardly  be  dwelt  upon 
with   too  much  emphasis.     Every  man  of  the   Old-school  party  in  the 


MR.  INGERSOLL'S  ARGUMENT.  393 

house,  who  has  been  examined,  says  that  he  did  not  know  until  the  after- 
noon, or  the  next  day,  that  Dr.  Fisher  had  been  appointed  Moderator.  How 
isit  possibletopresiime  the  acquiescence  of  these gentlemen,inthe  measures 
of  the  New-school,  when,  to  a  man,  they  come  and  tell  you,  that  they  did 
not  know  that  fact,  until  they  learned  it  from  their  friends  or  the  news- 
papers next  morning.  I  agree  that  if  they  would  not  hear,  it  was  another 
matter,  that  if  they  had  put  cotton  in  their  ears,  or  were  slumbering  at 
their  posts,  they  could  not  complain;  but  such  was  not  the  case.  All 
tried  to  hear.  Who  then  is  responsible  for  the  riot  and  disturbance  which 
prevented  them  from  hearing?  Suppose  that  each  party  made  a  noise, 
which  was  the  primiim  mfthile — the  first  cause?  Were  not  those  who 
caused  the  disorder  at  least  as  guilty  as  the  others?  A  case  of  riot  is  ap- 
plicable here  as  an  illustration.  A  quiet  and  orderly  set  of  men  had  been 
a'ssault6d  and  beaten  by  another  set;  but  it  was  decided  that  the  proces- 
sion of  the  former  was  calculated  to  provoke  disturbance,  and  though  it 
did  not  excuse  those  who  struck  the  blow,  made  all  rioters  together.  If 
then,  the  New-school  caused  the  disorder  and  noise,  they  have  no  right  to 
complain  of  it,  and  still  less  are  they  to  be  allowed  to  derive  any  advan- 
tage therefrom..  But  not  a  single  person,  if  I  have  read  the  evidence 
aright,  charges  a  particle  of  disorder  upon  the  Old-school.  This  may  seem 
a  bold  position;  yet  I  feel  confident  that  I  shall  be  able  to  substantiate  it. 
Not  a  single  act  of  disorder  has  been  brouglit  home  to  one  of  theni. 
There  were  to  be  sure  cries  of  order  from  some  of  the  Old-school;  but  I 
have  yet  to  learn  that  calls  for  order  can  be  disorderly.  There  is  a  story 
that  stamping,  scraping,  and  hissing  were  heard  to  proceed  from  the 
south-western  part  of  the  house;  but  several  persons  who  sat  in  that 
neighbourhood  say  that  there  was  nothing  of  the  kind.  Who  made  this 
noise?  I  don't  know,  and  I  am  sure  you  do  not.  I  will  not  pretend  to 
charge  it  upon  the  New-school,  but  I  deny  that  it  proceeded  from  members 
of  the  Old-  school,  till  it  is  brought  home  to  some  of  them.  Was  it  made  by 
Mr.  Boardman — Mr.  Breckinridge — Dr.  Miller?  They  all  were  in  the 
accused  neighbourhood  and  declare  that  they  made  no  such  noise,  and 
knew  no  one  that  did.  Dr.  Miller,  in  the  course  of  the  cross-examina- 
tion denied  emphatically  any  participation  in  it.  Mr.  Breckinridge  rose 
and  said,  that  the  business  of  the  Assembly  had  better  be  suspended  until 
the  disturbance  had  passed  over,  as  the  Moderator  had  before  tried  in 
vain  to  restore  order.  These  all  have  entirely  exculpated  themselves. 
There  has  not  one  single  act  been  proved  against  a  single  individual  of 
the  Old-school,  that  tended  to  disorder,  or  was  improper. 

I  say,  farther,  that  there  was  much  disturbance  on  the  other  side.  Dis- 
orderly acts  could  be  fixed  upon  many,  but  I  select  only  a  single  in- 
stance— that  of  Mr.  Duffield.  A  young  gentleman,  who,  I  believe,  was 
unexpectedly  examined,  and  who  declared  positively  that  he  knew  Mr. 
Duffield,  having  seen  him  on  various  occasions,  testifies  that  he  saw  him, 
at  the  time  of  which  we  are  speaking,  commit  several  acts  of  gross  dis- 
order, with  a  cane  that  he  held  in  his  hand.  He  declares  that  he  plainly 
saw  the  cane,  and  acts  of  extreme  disorder.  The  opposite  counsel  eager- 
ly inquired,  where  this  witness  lived,  and  I  was  called  on  to  be  responsible 
for  his  appearance  next  day.  He  was  told  to  come  back  next  morning 
and  was  here  accordingly,  but  was  not  brought  to  the  stand.  The  coun- 
sel, hQwever,  brought  forward  Mr.  Elmes  to  state,  that  Mr.  Duffield  had 

SiQ 


394  PRESBYTERIAN  CHURCH  CASE. 

once  lodged  at  his  house,  and  that  he  did  not  usually  carry  a  cane.  I 
might,  in  the  same  way,  prove  that  Dr.  Elliott  was  not  in  the  habit  of 
holding  a  hammer  in  his  hand^  but  this  would  not  disprove  the  evidence 
that  he  had  a  hammer  when  presiding  as  Moderator. 

The  New-school  party  meant  to  create  a  disorder.  They  resorted  to 
measures  of  revolution,  more  or  less  violent — the  consummation  of  all 
disorders.  They  alone,  therefore,  were  criminal:  we  are  clear  of  guilt. 
Whether  Mr.  Duffield  carried  a  cane  or  not,  it  is  proved  that  he  voted, 
which  in  him  was  an  act  of  disorder.  The  ayes,  says  Dr.  Hill,  rang  a 
peal  indecently  and  oifensively  loud;  but  if  the  gentlemanly  Mr.  Duffield, 
voted  in  the  stillest,  smallest  voice;  if  he  augmented  the  general  flood  by 
only  a  single  drop,  he  was  just  as  disorderly,  as  if  he  had  made  use  of  his 
cane  in  the  way  described,  or  stood  up  on  the  back  of  a  pew.  All  ques- 
tions about  the  cane  may  be  dispensed  with.  It  is  proved  conclusively 
that  he  voted — this — in  him  a  gross  disorder — is  fastened  upon  him,  and 
that  he  was  disorderly  is  sufficient  for  our  purpose. 

A  host  of  witnesses — all  of  the  Old-school,  and  most  of  the  New,  tes- 
tify that  they  heard  noises  of  every  kind  misbecoming  such  an  Assem- 
bly— stamping,  scraping,  hissing,  and  ayes  very  loud  and  offensive;  that 
they  saw  some  persons  standing  even  on  the  tops  of  the  pews,  others 
moving  down  the  aisle,  and  a  number  at  the  invitation  of  their  ringleader 
retiring  in  a  mass  to  a  distant  part  of  the  house.  All  this  made  the  pro- 
ceedings void.  Where  will  you  find  scenes  of  such  disturbance  and 
confusion,  accompanied  by  effective  action,  in  legislative  bodies?  Not  in 
all  the  wildest  disorders  of  our  own  House  of  Representatives,  at  Wash- 
ington, or  of  the  British  Parliament.  Yet  they  are  mere  political  assem- 
blies, not  purified  and  sublimated  by  spiritual  influences. 

There  is  still  another  point  with  which  I  will  venture  to  trouble  you. 
How  was  the  transition  to  be  made  from  the  religious  assembly  to  the  re- 
gularly organized  deliberative  body?  The  clerks  were  in  the  first  place 
to  make  out  the  roll.  The  rules  of  1826  require  that  the  Committee  of 
Commissions  should  prepare  it,  upon  examination  of  all  the  commissions 
presented.  The  rule  of  1829  merely  appoints  the  clerks  a  standing 
Committee  of  Commissions.  Now,  who  were  the  clerks  of  the  pseudo 
Assembly?  Dr.  Mason  and  Mr.  Gilbert.  Did  they  ever  examine  all 
the  commissions?  They  never  in  the  world  made  a  roll.  It  must  be 
made  out  on  actual  inspection:  the  clerks  cannot  take  the  mere  declara- 
tions of  the  members  themselves.  But  neither  of  these  gentlemen  in- 
spected even  a  majority  of  the  commissions.  Mr.  Gilbert  says,  that  he 
formed  his  roll  by  correcting  a  list  which  he  had  before  made  out,  by 
Mr.  Krebs',  and  by  joining  this  list  to  another  containing  the  names  of 
the  commissioners  from  the  four  Western  Synods;  that  he  had  made  no 
examination  of  commissions,  or  had  examined  very  (ew.  Dr.  Fisher 
says,  "We  acted  upon  the  principle  that  we  had  superseded  the  Modera- 
tor and  clerks,  and  were  going  on  under  another  organization."  Re- 
member that  this  was  a  deliberative  Assembly,  and  the  highest  tribunal 
of  the  Church,  created  for  the  purpose  "  of  reproving,  warning,  or  bear- 
ing testimony  against  error  in  doctrine,  or  immorality  in  practice;"  "of 
superintending  the  concerns  of  the  whole  Church" — I  am  speaking 
the  language  of  the  Form  of  Government — "  of  suppressing  schismatical 
contentions   and   disputations;   and,  in    general,  of  recommending   and 


MR.  INGERSOLL'S  ARGUMENT, 


395 


attempting  reformation  of  manners,  and  the  promotion  of  charity,  truth, 
and  holiness."  Yet  we  find  a  body  claiming  to  be  this  august  Assembly, 
disregarding  all  rules  of  order,  every  sort  of  principle,  and  overturning 
their  whole  code  of  laws  in  a  single  moment.  How  disgraceful  is  such 
strife  among  brethren — the  fratrum  ira  which  the  heathens  regarded 
with  so  great  abhorrence.  Anger  is  carried  to  the  extent  of  treason  to 
their  faith.  Yells  of  "Aye!"  clapping,  and  hissing  are  all  heard  sound- 
ing loudly  above  the  general  murmur  of  the  tumult.  What  valid  mea- 
sures could  be  adopted  in  the  midst  of  that  scene  of  disorder  and  confu- 
sion? Nothing  could  be  regularly  done.  Inter  arma  silent  leges. 
During  this  season  of  violence  there  was  no  deliberative  Assembly  in 
that  church.  All  law  was  trampled  upon  and  set  at  defiance.  The  de- 
cency of  the  house  of  prayer  was  forgotten,  and  it  was  converted  into 
the  likeness  of  a  den  of  thieves.  Uproar  and  riot  had  taken  the  place  of 
that  grave  deportment,  that  ChrisVian  order,  which  the  laws  of  God,  as 
well  as  all  human  laws,  enjoined. 

Suppose  that  this  disturbance  came  alone  from  the  gallery:  what 
would  have  been  the  course  adopted  in  any  other  Assembly.?  The  gal- 
leries would  instantly  have  been  cleared,  the  intruders  turned  out.  You 
have  probably  seen  such  interruptions  even  in  courts  of  justice.  Per- 
haps a  drunken  man  comes  in,  and  for  a  moment  puts  every  thing  into 
confusion.  The  proceedings  are  stayed  until  he  is  taken  into  custody  and 
removed.  There  is  no  difficulty  in  giving  true  interpretation  and  effect 
to  the  condition  of  a  deliberative  body  thus  disturbed.  Its  proceedings 
are  suspended.  Its  existence  is  for  the  moment  annihilated.  It  stands 
still,  as  it  would  do  during  a  brief  recess  for  the  purpose  of  refreshment 
or  repose.  A  few  rebellious  spirits  cannot  at  such  an  interval  combine 
for  any  effectual  purposes  of  mischief,  in  the  absence  or  without  the  suffi- 
cient knowledge  of  their  well  disposed  associates  and  fellow  members. 
Their  doings  are  merely  void.  Otherwise  gross  injustice  would  prevail. 
Certain  armed  soldiers  were  once  introduced  into  the  Roman  forum,  un- 
der whose  influence  the  spirit  of  Cicero  quailed,  and  Justice  dropped  her 
sword  and  her  scales  together.  When  in  an  earlier  period  of  the  same 
classic  history,  the  Gauls  broke  into  the  senate  house,  and  plucked  a 
conscript  father  by  the  beard,  deliberation  rested,  while  the  hoary 
headed  patriot  struck  the  insolent  intruder  to  the  earth.  These  were 
secular  assemblies,  which  met  in  Pagan  times.  Yet  the  effect  of  their 
interruption  was  such  as  I  have  described.  In  a  religious  convocation — 
in  an  age  of  refinement,  which  boasts  the  influence  of  a  Christian  spirit — 
in  an  Assembly  devoted  to  the  cause  of  peace,  bowing  habitually  its 
knees  in  prayer — bending  its  bodies  to  the  cross,  such  a  state  of  things 
as  has  been  described  was  perfectly  incompatible  with  any  measure  of 
validity.  It  matters  not  who  were  the  loudest  of  the  rioters— bystanders, 
or  applicants  for  admission,  or  admitted  members — partizans  of  one  side 
or  partizans  of  the  other.  Riotous  proceedings  are  brought  home  to  the 
Assembly.  Tumultuous  disturbances  of  the  peace  occurred  in  the  midst 
of  the  legislative  hall.  All  were  affected  by  the  results,  although  many 
may  have  been  innocent  of  the  misdeed.  The  irregularities  of  a  minori- 
ty in  the  Assembly  invited  the  greater  irregularities  of  bystanders,  who 
were  tempted,  instigated  and  led  on  by  the  evil  precedent  and  example 
of  these  reverend  but  misjudging  and  misguided  brethren. 


396  PRESBYTERIAN  CHURCH  CASE. 

The  question  submitted  is,  whether  these  partial  disorders  are  to  give 
success  to  the  designs  of  those  who  create  them,  or  whether  they  are 
merely  to  pass  off  like  vapours  and  leave  the  renovated  atmosphere  un- 
affected by  their  brief  existence.  According  to  the  decision  of  it  will 
the  one  or  the  other  of  the  parties  prevail.  Should  the  plaintiffs  fail  to 
convince  you  of  their  claims,  little  inconvenience  and  no  loss  can  be  sus- 
tained. They  will  voluntarily  meet  in  '39,  as  they  voluntarily  met  in 
'38,  a  separate  body,  without  the  scandal  of  discord  and  strife  which 
prevailed  when  the  two  parties  met  together.  In  future  years  they  will 
continue  to  maintain  the  position  which  they  have  selected,  undisturbed 
by  any  of  those  from  whom  they  have  chosen  to  depart.  If  they  are 
disposed  at  any  time  to  return  to  the  ancient  Church  with  amended  alle- 
giance, they  will  be  received  with  open  arms.  If  in  the  mean  time  they 
desire  to  be  merry  in  their  separation,  they  will  always  find  in  the  fer- 
tility of  our  friend  who  has  so  ably  advocated  their  cause,  a  jest  suited  to 
their  wants. 

Should  the  defendants  lose  their  cause,  in  which  their  interest  is  deep 
and  lasting,  the  consequence  to  them  will  be  widely  different.  Dearer  to 
them  than  life  is  the  Church  of  their  affections.  Closer  to  them  than  the 
ties  of  nature  are  the  systems  to  which  they  became  devoted  in  their  in- 
fancy, which  they  believe  to  be  connected  with  their  immortal  hopes. 
Every  thing,  they  are  persuaded,  most  valuable  to  them  on  earth,  will  be 
affected  by  the  decision  of  this  cause.  If  they  are  declared  to  be  no  longer 
members  of  the  Presbyterian  Church,  and  its  balmy  influences  have 
indeed  been  withdrawn  from  them,  the  iron  will  enter  deep  into  their 
souls.  Their  future  days  will  be  filled  with  sorrowing  for  what  they 
have  irrevocally  lost.  They  can  only  hang  their  harps  upon  the  willows, 
and  weep,  like  Rachel,  for  that  which  cannot  be  restored. 

Court  adjourned. 


397 


MR.  WOOD'S  ARGUMENT. 


SATURDAY  MORNING,  March  23d— 10  o'clock. 

Gentlemen  of  the  Jury — After  having  floated  for  several  days  in  the 
upper  rejjjions  of  air,  in  following  the  learned  counsel  on  the  other  side, 
in  their  flights  of  fancy  and  of  oratory,  you  may  find  it  difficult  to  come 
down  again  to  the  earth;  but  I  assure  you  that  you  will  be  under  the  ne- 
cessity of  coming  down,  for  I  shall  not  attempt  to  follow  them  in  their 
airy  flights:  I  am  not  accustomed  to  being  perpetually  upon  the  wing.  I 
shall  confine  myself  to  a  plain  statement  of  facts  and  arguments,  and  shall 
condense  my  remarks  as  much  as  possible,  saying  nothing  more  than  suf- 
fices for  the  ellucidation  of  the  case,  and  the  discharge  of  my  duty  to  my 
clients.  This  is  incumbent  on  me,  in  consequence,  not  only  of  your 
already  exhausted  patience,  but  also  of  my  own  indisposition,  which  ren- 
ders it  almost  impossible  for  me  to  proceed  at  all. 

A  variety  of  matters  have  been  introduced  here,  which  are,  in  my 
opinion,  in  a  great  measure  irrelevant  to  the  real  question  which  you  are 
to  decide.  A  great  mass  of  testimony  has  been  introduced  which  might 
have  been  dispensed  with.  The  learned  counsel  on  the  other  side,  in 
claiming  a  majority  of  clients,  have  seemed  to  think  it  necessary  to  have 
a  majority  of  witnesses.  Why,  gentlemen,  we  could  have  gone  on  to 
examine  witnesses  for  months,  but  our  object  was  to  save  time,  and  we 
therefore  dispensed  even  with  the  cross-examination  of  their  witnesses, 
in  order  to  bring  the  case  within  reasonable  limits.  The  opposite  counsel 
have  relied  much  upon  the  fact  that  the  testimony  of  Dr.  Beman  and  Mr. 
Cleaveland  was  not  introduced.  They  are  absent,  but,  as  the  learned  gen- 
tleman has  stated,  their  depositions  were  taken.  Why  have  not  these 
been  read?  Why  was  not  Dr.  Nott's  deposition  read?  You  recollect 
that  all  these  were  taken  before  the  controversy  here  commenced,  and 
they  do  not  touch  the  precise  points  which  have  been  since  started  by 
our  opponents.  When  I  came  here  I  did  not  dream  that  the  case  would 
be  made  to  turn  upon  these  nice  minutiae  of  order  and  parliamentary  dis- 
cipline. The  depositions  were  taken  on  other  topics:  we  could  not  pos- 
sibly anticipate  the  course  into  which  the  proceedings  would  fall.  This 
was  the  reason  why  Dr.  Nott's  deposition  was  withheld. 

Mr,  Ingersoll.  We  refused  to  offer  that  in  a  mutilated  form,  after  a 
part  had  been  rejected. 

Mr.  Wood.  I  say  that  this  was  the  reason  why  Dr.  Nott's  deposition 
was  not  read,  and  I  will  show  that  it  was.  His  Honour  rejected  ell  that 
part  which  was  extraneous  to  the  issue,  and  the  rest  the  counsel  considered 
too  trifling  to  be  offered.  We  might  as  well  infer,  that  Dr.  Nott  testifies 
that  Mr.  Cleaveland's  motion  was  reversed,  as  they,  that  Mr.  Cleaveland 
swears  to  the  contrary — the  two  suppositions  rest  on  the  same  footing.  I 
think  that  we  have  given  evidence  enough;  but  if  Dr.  Beman  and  Mr. 
Cleaveland  had  been  here  on  the  stand,  as  Dr.  McDowell  was,  and  had  not 


3g8  PRESBYTERIAN  CHURCH  CASE. 

been  examined,  then  the  fair  inference  might  be,  that  we  knew  their  tes- 
timony would  prove  unfavourable. 

In  the  next  place,  it  is  said  that  the  Old-school  party  have  not  sought 
litigation;  that  they  have  not  willingly  come  into  court;  that  this  pro- 
ceeding is  wholly  chargeable  upon  us.  This  may  be  so.  I  have  never 
known  a  body  of  men,  conscious  of  being  in  the  wrong,  to  seek  a  court 
of  justice.  That  is  the  place,  which  above  all  others  they  desire  to  avoid. 
The  party  injured  usually  resorts  thither,  seeking,  however,  not  litigation, 
but  redress.  We  are  told  that  we  have  asked  the  advice  of  counsel  learn- 
ed in  the  law.  Is  that  very  extraordinary,  after  one  or  two  hundred 
thousand  persons  had  been  cut  off  from  the  Presbyterian  Church,  without 
trial?  Extraordinary  that  we  should  resort  to  gentlemen  of  the  bar,  to 
take  advice  upon  the  measures  that  would  enable  us  to  obtain  that  re- 
dress, which  our  ecclesiastical  brethren  had  denied  us?  Certainly  there 
is  in  this  nothing  that  can  prejudice  the  cause  of  my  clients. 

These  preliminary  matters  having  been  disposed  of,  I  come  directly  to 
the  main  question  in  dispute,  which  I  beg  leave  to  present  distinctly  to 
your  view.  Was  that  Assembly,  which  in  1838  elected  the  relators  trus- 
tees, the  General  Assembly  contemplated  by  the  charter  of  incorporation 
granted  in  1799?  The  issue  joined  is  whether  the  relators  were  duly 
chosen  trustees,  which  will  appear  from  the  solution  of  the  former  ques- 
tion; for  that  the  mode  of  election  was  proper  is  not  disputed.  I  there- 
fore call  your  attention  to  the  point,  was  the  Assembly  that  elected  the 
relators  a  true  and  lawful  Assembly? 

The  General  Assembly  is  what  is  called  a  quasi  corporation.  This 
admits  of  no  proof;  yet  some  remarks  upon  the  point  will  serve  to  give 
a  true  idea  of  the  nature  of  the  rights  of  which  our  opponents  have  at- 
tempted to  deprive  us.  First,  the  Assembly  is  a  quasi  corporation  un- 
der the  doctrine  of  public  trusts  and  charitable  uses.  Even  where  the 
whole  ecclesiastical  system  of  a  religious  society  is  voluntary  throughout, 
the  civil  courts  will  interfere  to  prevent  the  diversion  of  charitable  funds 
from  their  true  object.  Witman  v.  Lex,  17  Serg.  and  Raivle,  90.  Mog- 
gridge  v.  Thackwell,  7  Vesey^s  Ch.  Rep.  36.  In  England  the  Court  of 
King's  Bench,  has  in  repeated  instances,  by  means  of  the  writs  of  man- 
damus restored  preachers  who  had  been  deposed,  where  the  religious 
societies  to  which  they  belonged  were  purely  voluntary,  looking  at  mem- 
bership in  institutions  not  incorporated  as  a  right  in  both  law  and  equity. 
But  the  General  Assembly  may  come  here,  and  all  its  members  may  come, 
for  protection  in  the  exercise  of  rights  secured  by  a  charter.  It  has  even 
been  admitted  on  the  other  side  that  the  Assembly  is  to  be  regarded  as  a  cor- 
poration, which  perhaps  is  going  a  little  too  far;  but  certainly  the  trus- 
tees who  form  the  body  actually  incorporated  are  a  mere  agency. 

Judge  Rogers.    I  have  no  diiBculty  on  that  point. 

Mr.  Wood.  I  presumed  that  it  was  a  point  on  which  there  could  be 
no  difficulty;  still  I  would  beg  leave  to  dwell  upon  it  for  a  moment.  We 
find  that  to  this  General  Assembly,  as  it  existed  in  1799,  possessed  of  cer- 
tain rights  and  privileges,  resting  under  certain  obligations,  and  embody^- 
ing  the  beneficence  of  the  whole  Presbyterian  Church,  was  granted  a 
charter  incorporating  its  trustees.  In  order  to  find  out  what  that  charter 
meant,  and  what  the  trustees  were  to  do,  we  must  inquire  into  the  nature 
of  the  Assembly,  and  of  the  objects  which  its  plan  of  action  embraced, 


MR.  WOOD'S  ARGUMENT.  3^ 

at  the  time  of  the  incorporation.  We  find  that  at  that  time  it  was  the 
chief  judicatory  of  the  Presbyterian  Church,  indeed,  but  of  a  Presbyterian 
Church  in  alliance  with  Congregational  Churches,  as  appears  from  the  fol- 
lowing provisions  of  a  treaty  profifered  by  the  General  Assembly  to  the 
General  Association  of  Connecticut,  in  1794. — Assem.  Dig.  pp.  295-6. 

"  On  motion,  ordered,  that  the  delegates  appointed  from  the  General 
Assembly  to  the  General  Association  of  Connecticut  propose  to  the  Asso- 
ciation, as  an  amendment  to  the  articles  of  intercourse  agreed  upon  be- 
tween the  aforesaid  bodies,  that  the  delegates  from  these  bodies,  respect- 
ively, shall  have  a  right,  not  only  to  sit  and  deliberate,  but  also  to  vote  in 
all  questions  which  shall  be  determined  by  either  of  them: — And  to  com- 
municate the  result  of  their  proposal  to  the  next  General  Assembly." 

Then  on  the  same  page  is  found  the  response  of  the  General  Asso- 
ciation': 

"  The  motion  of  the  General  Assembly  of  the  Presbyterian  Church, 
that  the  delegates  from  that  Assembly  to  this  Association,  and  the  dele- 
gates from  this  Association  to  that  Assembly,  be  empowered  to  vote  in 
all  questions  decided  in  those  bodies  respectively,  was  taken  into  consi- 
deration; and  after  discussion,  the  General  Association  voted  a  compliance 
with  the  said  proposal." 

We  find  then,  that  in  1799,  at  the  time  when  the  charter  of  incorpora- 
tion was  granted,  there  was  thought  to  be  no  inconsistence  between  the 
rules  regulating  the  doctrine  and  order  of  the  Presbyterian  Church,  which 
were,  if  you  please,  of  divine  right,  and  an  alliance  formed  with  Congre- 
gationalists,  although  that  alliance  was  not  merely  one  of  correspondence, 
but  allowed  delegates  from  the  General  Association  of  Connecticut  both 
to  sit  and  vote  in  the  councils  of  the  Church,  and  this  even  in  the  highest 
council,  that  which  rules  over  all  the  others,  dispensing  its  benefits  and 
blessings  to  the  whole  Church.  I  need  scarcely  refer  to  the  great  prin- 
ciple, that  the  consideration  of  cotemporaneous  usage  is  always  of  vast 
importance  in  determining  the  true  bearing  of  a  charter.  Finding  cor- 
porate powers  granted  by  the  legislature  for  the  benefit  of  the  ministers 
and  elders  of  the  Presbyterian  Church,  we  must  ascertain  the  existence, 
nature,  and  character  of  that  Church,  at  the  time  of  the  grant.  Then  it 
was  a  Church  allied  with  another  Church;  and  therefore  casual  alliances 
between  it  and  other  denominations  of  a  similar  character  are  not  con- 
trary to  the  charter.  One  of  the  learned  counsel  has  spoken  of  the  evi- 
dence contained  in  ecclesiastical  history,  that  such  unions  were  formerly 
allowed  in  England  even  between  Presbyterians  and  Episcopalians.  He 
might  have  gone  farther,  and  told  you  that  at  the  time  Presbyterianism 
was  introduced  here,  this  species  of  union  was  there  tolerated.  The  Pres- 
byterians of  the  United  States  came  from  England;  and,  when  they  came, 
brought  with  them  a  familiarity  with  such  ecclesiastical  alliances;  and  we 
find  their  taste  for  them  soon  manifested  in  their  new  settlement.  But 
certainly,  when  this  sort  of  alliance  existed  at  the  very  time  when  the 
charter  was  granted,  all  that  has  been  said  about  a  violation  of  that  char- 
ter, and  of  the  principles  of  Presbyterianism,  must  be  regarded  as  with- 
out weight.  These  plans  of  union  were  schemes  for  enlarging  the  reign 
of  peace  and  harmony,  and  are  not  to  be  declaimed  against  at  the  present 
day,  and  put  down  as  unconstitutional,  and  subversive  of  church  order 
and  pure  doctrine. 


400  PRESBYTERIAN  CHURCH  CASE. 

These  subordinate  institutions  are  all  subject  to  the  laws  of  the  land. 
We  have  been  told  that  ecclesiastical  judicatories  are  independent  of  the 
law.  That  is  not  true.  So  long  as  they  keep  within  the  sphere  of  their 
legitimate  powers  they  may  exercise  them  uncontrolled  by  the  civil 
authority;  but  they  are  bound  to  keep  within  that  sphere:  if  the}'^  go  be- 
yond it,  disregarding  those  fundamental  rules  and  principles  which  the 
law  has  provided  for  them  all.  for  the  protection  of  their  members  the 
minority  as  well  as  the  majority,  they  become  amenable  to  the  common 
tribunals  of  the  country.  The  very  cases  which  have  been  referred  to 
by  the  opposite  counsel  prove  this.  The  case  of  Field  v.  Field,  9  fVen- 
dell,  400,  was  that  of  a  religious  society  split  into  two  parts.  Did  the 
majority  there  find  that  they  were  above  the  courts  of  justice?  The  mi- 
nority sought  their  rights  in  court,  and  the  application  met  with  a  ready 
response. 

There  has  been  much  ado  about  our  attempt  to  disfranchise  Dr.  Green, 
and  we  have  had  oyer  and  view  of  the  reverend  gentleman  day  after  day. 
But  what  has  been  said  on  this  subject  has  seemed  as  if  addressed  to  feel- 
ing and  not  to  judgment.  No  man  respects  Dr.  Green  more  than  I  do, 
but  surely  these  are  mawkish,  crocodile  lamentations  that  are  made  on 
his  account.  He  suffers  but  the  loss  of  an  office  which  is  of  no  profit  or 
honour  to  him,  but  rather  a  burden.  We  do  not  impeach  his  character; 
we  do  not  make  a  personal  attack  upon  him.  Your  decision  in  regard  to 
this  collateral  matter,  however  made,  cannot  prejudice  him  in  either  his 
character  or  his  pocket.  I  therefore  dismiss  all  the  remarks  concerning 
him  with  this  passing  notice. 

There  can  be  no  doubt  that  the  Assembly,  which  elected  these  trustees, 
was  an  organized  body  and  purported  to  be  the  General  Assembly  of  the 
Presbyterian  Church.  Nor  can  there  be  any  doubt  that  it  was  first  or- 
ganized. And  you  will  remark  that,  if  it  was  properly  organized ;  if 
there  was  no  radical  defect  in  its  constitution,  there  could  be  no  farther 
or  other  organization.  If  ours  was  substantially  correct,  a  mere  petty 
irregularity  could  not  vitiate  it:  if  it  had  no  radical  defect,  that  organiza- 
tion must  prevail.  It  was  the  duty  of  every  commissioner  to  come  into 
it,  and  those  who  had  an  opportunity  of  doing  this  which  they  did  not 
improve,  cannot  now  complain.  Take  the  case  of  the  Common  Council 
of  this  city.  Suppose,  that  after  a  quorum  have  met  and  organized  them- 
selves, another  set  meet  and  pretend  to  organize  the  Council  anew.  Can 
the  latter  exercise  the  functions  of  the  true  body?  Can  there  be  as  many 
distinct  bodies  as  there  are  quorums,  each  possessing  the  powers  of  the 
whole?  And  a  mere  petty  irregularity,  if  there  were  any,  did  not  viti- 
ate our  organization.  Such  an  irregularity  occurred  in  1835.  There  is 
a  sort  of  usage  in  the  Assembly,  that  wh.en  the  Moderator  does  not  ap- 
pear to  take  his  seat,  the  last  Moderator  present  presides.  At  the  open- 
ing of  the  session  of  1835,  the  regular  Moderator  was  absent,  and  Dr. 
Beman,  who  was  not  the  last  present  took  the  chair.  The  last  it  seems 
was  not  a  member,  and  a  question  arose,  whether  the  rule  did  not  mean 
the  last  Moderator  present  who  was  also  a  member.  Dr.  Beman,  how- 
ever, sat  for  some  time,  and  a  variety  of  business  was  transacted,  before 
the  propriety  of  his  holding  the  seat  was  questioned,  and  finally  by  a 
vote  of  the  body  Dr.  McDowell  was  put  in  his  place.  It  may  appear 
singular  that  so  much  difficulty  should  have  been  made  about  such  a  mat- 


MR.  WOOD'S  ARGUMENT. 


401 


ter,  but  with  that  we  have  nothing  to  do.  The  case  shows  plainly  that  a 
defect  of  that  kind  is  not  sufficient  to  vitiate  the  organization.  When 
Dr.  McDowell  took  the  chair,  they  did  not  go  back  over  all  the  business 
which  had  been  before  transacted.  This  was  not  considered  necessary. 
They  just  went  on,  after  displacing  Dr.  Beman:  instead  of  forming  a  new 
organization,  they  merely  continued  that  already  commenced.  Although 
a  confessed  irregularity  had  occurred,  yet  the  business  done  before  the 
error  was  rectified  was  well  done,  and  under  a  new  Moderator  the  initia- 
tive organization  was  consummated. 

It  is  important,  gentlemen,  in  every  controversy  to  ascertain  how  far 
the  parties  agree,  and  on  what  points  they  diflfer.  No,  there  is  no  differ- 
ence here  as  to  the  fact  that  the  process  of  organization  of  the  General 
Assembly  was  going  on  up  to  the  period  when  Mi'.  Cleaveland  made  his 
motion.'  This  fact  both  admit;  both,  however,  contending  that  the  or- 
ganization was  proceeding  in  an  irregular  and  defective  manner,  though 
differing  as  to  the  nature  of  the  irregularity.  We  say  that  the  Old-school 
were  attempting  an  unlawful  organization,  and  that  the  object  of  Mr. 
Cleaveland's  motion  was  to  secure  a  lawful  organization,  which  should 
include  all  entitled  to  seats.  They  assert  that  our  attempt  to  introduce 
the  commissioners  from  the  exscinded  districts  was  disorderly.  Defects 
therefore  are  alleged  on  both  sides;  but  both  agree  that  up  to  a  certain 
time  the  Assembly  was  in  the  process  of  being  organized.  From  that 
point,  the  moment  when  Mr.  Cleaveland  rose,  we  take  our  departure  in 
different  directions.  We  are  charged  with  there  attempting  a  new  or- 
ganization, a  wrongful  and  illegal  succession.  On  the  other  hand,  we 
contend  that  it  is  not  so,  that  the  Assembly  displaced  a  Moderator  and 
two  clerks,  who  had  refused  to  perform  their  duty;  that  we  had  a  right 
to  remove  them — a  right  which  belongs  to  every  such  Assembly  where  offi- 
cers refuse  to  do  their  duty — and  that  after  thus  disposing  of  these  officers, 
we  proceeded  with  the  regular  business  of  the  judicatory.  Are  we  cor- 
rect in  this  position?     That  is  the  question  which  you  are  to  solve. 

This  leads  us  to  the  consideration  of  Mr.  Cleaveland's  motion.  I  say 
that  the  cause  of  that  motion  was  a  deliberate  design  to  exclude,  in  the 
organization,  from  the  Assembly,  a  large  number  of  commissioners,  by 
the  Moderator  and  clerks,  backed  by  a  portion  of  the  Old-school  party, 
commencing  in  1837,  and  carried  on  up  to  that  time — an  attempt  to 
create  an  unlawful  Assembly;  and  I  mean  to  show  from  both  general  prin- 
ciples, and  the  Assembly's  own  rules  in  conformity  with  them,  that  this 
attempt  to  create  an  unlawful  Assembly,  commencing  in  1837,  and  car- 
ried out  by  the  Moderator  and  clerks,  aided  by  a  clique  of  the  Old-school 
party,  down  to  the  time  of  Mr.  Cleaveland's  motion,  gave  us  the  right  to 
displace  those  officers  and  substitute  others  for  them.  The  consideration 
of  this  matter  carries  us  back  to  the  exscinding  resolutions  of  1837.  They 
are  the  first  subject  for  our  consideration — the  first  as  to  importance  and 
as  to  time.  To  the  learned  counsel  on  the  other  side  they  may  well  seem 
like  mere  trifles,  mere  preliminaries — portico-work — only  the  turning  out 
of  doors  of  some  two  hundred  thousand  stated  worshippers,  sixty  thousand 
communicants,  and  six  hundred  ministers  of  the  gospel!  If  this  be  the 
portico,  what  must  be  the  magnitude  of  the  great  temple  itself?  You  have 
heard  a  grave  discussion  of  various  petty  questions  of  parliamentary 
order.     Whether  the  new  Moderator  should  have  taken   the   chair  or 

51 


403  PRESBYTERIAN   c:iIURCH  CASE. 

might  stand  in  the  aisle;  whether  the  motion  to  displace  the  old  officers 
might  he  made  by  a  member,  or  must  be  put  by  one  of  the  clerks,  who 
had  also  refused  to  do  their  d(Jty;  and  whether  one  side  or  the  other  side 
of  the  house  was  the  proper  place  of  organization.  These  are  the  great 
questions  which  are  to  occupy  and  agitate  every  breast,  while  the  exclu- 
sion from  church  privileges  of  two  hundred  thousand  persons  is  mere 
portico-wcrk!  I  thank  the  learned  counsel  for  the  case  of  Field  v.  Field 
which  he  has  cited.  What  were  the  circumstances  of  that  case?  A  large 
majority  of  an  ecclesiastical  judicatory  attempted  to  organize  the  body  in 
their  own  way,  preventing  the  clerk  from  taking  any  part  in  the  organi- 
zation. But  the  minority,  with  the  clerk,  proceeded  to  organize  them- 
selves on  the  outside  of  the  house,  amid  all  the  confusion  of  an  out-door 
assembly,  and  the  noise  of  by-standers.  And  what  said  the  Supreme 
Court  of  New  York?  That  inasmuch  as  the  majority  had  prevented  an 
organization  in  the  regular  way,  and  had  attempted  to  create  an  unlawful 
assembly,  therefore  the  organization  of  the  minority,  though  effected 
under  circumstances  of  disadvantage,  outside  of  the  church,  in  the  open 
air,  was  the  true  assembly.  What  was  the  case  here?  A  resolution  of 
the  trustees  had  been  obtained  and  was  put  into  our  hands,  declaring  that 
we  should  not  occupy  that  church;  that  no  Assembly  should  be  organized 
there  unless  under  the  old  Moderator;  that  unless  we  would  submit  to 
these  mere  ministerial  officers,  v^'ho  had  been  sent  down  to  us  from  the 
Assembly  of  the  previous  year,  and  who  had  conspired  to  cut  off  from 
the  Church  two  hundred  thousand  souls,  we  should  not  use  that  house. 
But  in  this  case,  instead  of  going  into  the  street,  as  we  might  have  done, 
we  did  actually  organize  in  the  church,  notwithstanding  the  embarrass- 
ment of  our  situation.  The  new  Moderator  indeed  had  not  the  chair 
nor  the  hammer:  the  former  one  would  not  give  them  up;  hut  if  the 
minority  had  gone  into  the  street  to  organize  the  body,  theirs  would  have 
been  the  lawful  Assembly  and  as  such  sustained,  if  they  had  truly  been 
attempting  to  prevent  an  unlawful  Assembly's  being  organized  by  the 
Moderator  and  clerks,  borne  out  by  a  clique  of  the  Old-school. 

To  state  clearly  my  object,  I  propose,  gentlemen,  to  show  in  the  first 
place,  that  the  exscinding  resolutions  of  1837  were  void  in  law  and  of  no 
effect;  that  they  did  not  impair  or  destroy  in  the  slightest  degree  the  just 
and  lawful  rights  of  a  single  Presbyterian;  in  the  second  place,  that  there 
was  an  attempt  commencing  with  these  resolutions  in  1837,  and  followed 
out  by  the  Moderator,  the  clerks,  and  a  portion  of  the  Old-school,  to  effect 
an  organization  of  the  Assembly  of  1838,  to  the  exclusion  of  all  the  com- 
missioners from  the  Presbyteries  within  the  infected  districts;  and,  in  the 
third  place,  that  this  was  an  unlawful  attempt  to  effect  a  fraudulent  organi- 
zation; that  any  organization  not  including  all  entitled  to  seats  was  ille- 
gal, and  ought  to  have  been  resisted  by  all  fair  means.  If  1  succeed  in 
demonstrating  these  three  points,  I  think  they  must  put  an  end  to  the 
defendants'  case. 

The  exscinding  resolutions  it  is  unnecessary  here  to  read  again.  Their 
effect  was  to  cut  off  from  the  Church  all  the  Presbyterian  ministers  be- 
longing to  various  judicatories,  and  all  the  members  of  Presbyterian 
churches  residing  within  an  extensive  district,  comprising  a  large  portion 
of  New  York  and  Ohio.  Now,  whom  does  the  charter  of  1799  incorpo- 
rate?   The  trustees  of  all  the  ministers  and  elders  of  the  Presbyterian 


i 


MR.  WOOD'S  ARGUMENT. 


403 


Church.  Where?  Those  only  who  reside  in  Pennsylvania?  No,  but  all 
who  live  between  the  Delaware  and  the  Mississippi,  as  my  learned  friend 
has  told  you;  all  in  the  United  States,  which  the  broad  canopy  of  heaven 
covers.  That  charter  secures  to  every  Presbyterian  in  America  certain 
rights,  resulting  from 'the  right  to  continue  in  the  communion  of  the  Pres- 
byterian Church,  unless  excluded  by  a  regular  and  lawful  process.  How 
were  the  Presbyteries  within  the  infected  district  cut  off?  At  a  single 
blow;  without  notice,  without  trial,  without  any  complaint  or  specifica- 
tion of  charges  being  made,  without  the  least  warning.  They  who  per- 
formed the  act  were  themselves  mere  delegates,  deriving  their  whole 
power  from  the  Presbyteries;  yet  at  one  fell  swoop  they  sacrificed  all 
Presbyterial  rights.  What  was  the  effect  of  the  excision,  as  it  is  called, 
supposing  it  to  have  had  any  effect?  It  was  utterly  to  banish  Presbyte- 
rfanismfrom  a  large  district  of  country.  Cast  your  eyes  over  the  map, 
and  look  at  the  region  thus  tabooed,  made  infected  ground.  In  New  York 
alone,  it  extends  three  hundred  miles,  between  Albany  or  Utica  on  the 
one  hand,  and  Buffalo  on  the  other — a  district  as  extensive  as  three  or 
four  or  five  of  the  smaller  states  of  the  Union.  This  large  district  was 
in  fact  made  a  Presbyterian  desert,  without  a  single  oasis,  a  single  spot  of 
verdure.  The  excision  completely  banished  all  Presbyterianism  from  its 
borders.  And  what  are  the  modifications  or  qualifying  provisions  of  the 
act  of  excision?  Here  it  will  be  necessary  to  take  up  the  resolutions  for 
a  moment.     They  tell  the  excluded  portion  of  the  Church, 

"  That  the  solicitude  of  this  Assembly  on  the  whole  subject,  and  its 
urgency  for  the  immediate  decision  of  it,  are  greatly  increased  by  reason 
of  the  gross  disorders  which  are  ascertained  to  have  prevailed  in  those 
Synods,  (as  well  as  that  of  the  Western  Reserve,  against  which  a  decla- 
rative resolution,  similar  to  the  first  of  these,  has  been  passed  during  our 
present  session,)  it  being  made  clear  to  us,  that  even  the  Plan  of  Union 
itself  was  never  consistently  carrTe4  into  effect  by  those  professing  to  act 
under  it."  And  suppose  it  was  not,  was  this  the  way  to  treat  their  breth- 
ren? They  ought  to  have  rectified  the  evil,  to  have  made  provision  to 
regulate  the  thing  in  future.  With  what  reason  could  they  cut  off  whole 
Presbyteries  and  Synods  because  the  "  Plan  of  Union"  had  not  been  con- 
sistently carried  into  effect?  We  are  told  that  great  disorders  were  as- 
certained to  have  existed.  Was  there  any  trial,  any  hearing  given  to 
these  judicatories?  Were  they  allowed  an  opportunity  of  meeting  such 
charges  to  show  that  they  had  no  foundation  in  fact?  Next,  it  is  said, 
"  That  the  Assembly  has  no  intention,  by  these  resolutions,  or  by  that 
passed  in  the  case  of  the  S3mod  of  the  Western  Reserve,  to  affect  in  any 
way  the  ministerial  standing  of  any  members  of  either  of  said  Synods; 
nor  to  disturb  the  pastoral  relation  in  an}'^  church."  What  mockery? 
They  do  not  wish  to  affect  any  one's  ministerial  standing,  or  pastoral  re- 
lation? What  are  the  rights  of  that  standing  and  relation?  Are  they 
not  the  right  of  connexion  with  Presbyteries,  Synods,  and  the  General 
Assemi)ly;  the  right  of  resorting  thither  for  the  redress  of  grievances  and 
the  settlement  of  disputes;  the  right  of  having  a  voice  in  the  control  of 
church  funds?  And  have  not  these  men  been  cut  off  from  all  such  rights? 
Have  they  not  been  shut  out  fi-om  all  the  benefits  of  their  ecclesiastical 
standing  and  relations?  It  is  idle  to  talk  thus.  One  of  the  counsel  has 
observed — he  told  you  of  the  fact  with  an  appearance  of  some  satisfac- 


404  PRESBYTERIAN  CHURCH  CASE. 

tion — that  no  Presbyterians  in  Pennsylvania  had  been  cut  off.  True, 
•Pennsylvania  has  not  been  touched;  but  the  intimation  conveyed  a  mean- 
ing, which  could  not  have  been  designed  by  the  learned  gentleman,  and 
which  was  certainly  unworthy  of  him.  You  will  make  no  such  invidi- 
ous distinctions;  you  will  not  make  a  difference  between  Presbyterians 
in  Pennsylvania,  and  those  in  New  York.  Besides,  if  you  sustain  the 
conduct  of  our  opponents,  you  know  not  how  soon  Pennsylvania  may 
suffer  in  a  like  way.  If  yoit  establish  the  legality  of  this  measure  of  ex- 
cision, an  accidental  majority  may,  on  pretence  of  difference  in  doctrine, 
soon  cut  off  a  portion  of  the  Church  in  Pennsylvania — perhaps  the  Synod 
of  Philadelphia.  And  then  Dr.  Green,  about  whose  removal  from  the 
office  of  trustee  there  has  been  so  much  factitious  distress,  will  lose  not 
only  his  office,  but  also  the  whole  of  his  ecclesiastical  privileges. 

It  is  a  mockery  of  justice  thus  to  tell  the  members  of  the  four  Synods, 
that  although  they  have  been  cut  off,  means  have  been  taken  to  guard 
against  the  effects  of  the  excision.     But  what  are  these  means? 

Here  Mr.  Wood  read  the  third  and  fourth  resolutions. —  Vid.  ante, 
p.  46. 

This  is  the  provision  made  to  guard  against  the  injurious  effects,  of  the 
previous  resolution.  Any  Presbytery  within  the  infected  district,  being 
strictly  Presbyterian  in  doctrine  and  order  may  apply  for  admission  to 
the  General  Assembly.  But  such  Presbytery  is  not  to  be  at  once  ad- 
mitted: it  must  come  and  apply  to  the  General  Assembly,  and  they  will 
take  order  on  the  application.  Bear  in  mind,  gentlemen,  that  it  was 
clearly  shown  by  the  plansi  adopted  in  1837,  and  '38,  that  it  was  never 
meant  that  any  one  of  these  Presbyteries  should  be  re-admitted  without 
a  special  act  of  the  General  Assembly.  It  was  intended  to  organize  the 
body  in  1838  to  the  exclusion  of  all  the  commissioners  from  them,  and 
then  when  they  came  to  supplicate  for  admission,  they  would  have  been  at 
the  mercy  of  the  same  majority  by  whom  they  had  been  exscinded.  In 
this  mode  they  were  to  come  in;  thus  to  regain  the  rights  secured  to 
them  by  the  charter.  And  as  to  the  individual  members  who  were  cut 
off — what  were  they  to  do.^     Look  at  page  429,  of  the  Minutes  of  1837. 

<'  The  report  of  the  committee  on  the  right  of  Presbyteries  to  examine 
ministers  applying  for  admission,  which  was  adopted  this  morning,  was 
reconsidered,  amended,  and  adopted  as  follows,  viz: 

"  That  the  constitutional  right  of  eveiy  Presbytery  to  examine-all  seek- 
ing connexion  with  tliem,  was  settled  by  the  x\ssembly  of  1835,  (see 
Minutes  of  1835,  p.  27.)  And  this  Assembly  now  render  it  imperative 
on  Presbyteries  to  examine  all  who  make  application  for  admission  into 
their  bodies,  at  least  on  experimental  religion,  didactic  and  polemic  theol- 
og5',  and  church  govei-nment." 

This  is  the  way  in  which  the  individuals  applying  for  admission  were 
to  be  received.  A  clergyman  like  Dr.  Richards,  born  in  the  Church,  who 
has  spent  all  his  days  in  its  communion,  and  has  dispensed  the  benefits  of 
religious  teaching  year  after  year  to  a  portion  of  its  worshippers,  in  the 
decline  of  life,  is  cut  off  from  Ihc  Church,  tabooed;  and  in  order  to  get 
back  again,  must  travel  some  hundred  miles — the  whole  district  is  three 
hundred  miles  in  extent — must  go  beyond  the  utmost  verge  of  this  re- 
gion, before  he  reaches  a  spot  on  which  the  benefits  of  Presbyterianism 
are  shed.     Then,  before  he  can  join  any  Presbytery,  he  must  submit  to  an 


MR.  WOOD'S  ARGUMENT.  4Q5 

examination,  and  I  suppose  a  cross-examination,  on  experimental  religion! 
At  one  blow  all  these  men  were  cut  off,  being  allowed  no  hearing,  no 
trial — men  as  good  as  Dr.  Green  himself,  or  any  who  have  gone  before 
him;  and  in  order  to  be  restored  they  must  travel  perhaps  two  or  three 
hundred  miles,  then  submit  to  an  examination  on  experimental  religion, 
and  then — what?  Still  they  cannot  go  up  immediately  as  members  to 
the  Assembly  of  1838,  but  must  apply  to  it  for  admission  after  its  organi- 
zation. They  must  travel  out  of  the  region  in  which  they  reside,  in 
order  that  they  may  be  examined  on  experimental  religion — men  who 
have  spent  their  whole  lives  in  experimenting  on  religion,  and  spreading 
its  practical  benefits  over  the  whole  land — and  then  cannot  be  admitted 
until  the  General  Assembly  choose  to  take  order  on  their  case.  Have  I 
•not  made  good  my  words,  that  this  was  a  mere  mockery? 

As  judicial  acts,  it  cannot  be  pretended  that  the  exscinding  resolutions 
are  not  entirely  void,  inasmuch  as  there  was  no  trial  or  even  notice;  and 
this  not  only  by  the  law  of  the  land,  but  by  the  books  of  the  Presbyte- 
rian Church  itself  My  position  is  established  by  true  Presbyterian  doc- 
trines, by  rules  all  made  before  these  acts  of  tyranny  were  contemplated. 
In  1793,  by  the  Assembly, 

"  It  was  Resolved,  as  the  sense  of  this  house,  that  no  man  or  body  of 
men,  agreeably  to  the  constitution  of  this  church,  ought  to  be  condemned 
or  censured,  without  having  notice  of  the  accusation  against  him  or  them, 
and  notice  given  for  trial." — Ossein.  Dig.  p.  323. 

Now  this  is  not  only  the  Presbyterian  law,  and  a  clear  principle  of 
common  justice:  it  is  also  the  law  of  the  land.  I  refer  for  proof  to  An- 
gell  and  Ames  on  Corporations,  244,  where  is  laid  down  the  same  doc- 
triue  with  that  found  in  the  Digest. 

"  In  none  of  the  above  cases,  wherein  it  is  considered  that  there  is  just 
and  sufficient  cause  for  amotion,  can  the  party  be  expelled  unless  he  has 
been  duly  notified  to  appear.  *  *  *  But  the  court  were  clear,  that  there 
must  be  some  act  of  the  society,  declaring  the  expulsion;  and  that  this 
could  not  be  done  without  a  vote  of  expulsion,  after  notice  to  the  party 
supposed  to  be  in  default.         *****  *  * 

"  It  does  not  appear  necessary  that  the  summons  or  notice  should  par- 
ticularize the  charges;  though  some  intimation  should  be  given  of  them, 
that  the  accused  may  have  an  opporunity  of  vindicating  himself." 

Here  there  was  not  only  no  notice  of  trial,  but  not  even  an  intimation 
of  a  charge  given.  The  commissioners  from  the  exscinded  Presbyteries 
come  up  as  if  to  an  ordinary  Assembly:  they  expect  only  ordinary  busi- 
ness. Having  received  no  notice,  or  citation  to  trial,  and  without  having 
been  heard  in  self  defence,  they  find  not  only  themselves,  but  all  their 
constituency,  residing  in  a  country  of  three  hundred  miles  extent  in  New 
York,  and  one  hundred  miles  in  Ohio,  banished  entirely  from  the  Assem- 
bly and  the  Church,  while  the  region  in  which  they  live  is  looked  upon, 
for  all  Presbyterian  purposes,  as  "^an  infected  region.  But  you  are  told 
that  it  is  a  constitutional  practice  to  dissolve  these  judicatories.  True,  the 
Assembly  may  dissolve  Synods  and  Presbyteries,  but  that  is  a  very  dif- 
ferent thing  from  catting  them  off',  from  stripping  them  of  all  their  eccle- 
siastical rights  and  privileges,  from  declaring  them  no  longer  part  or  par 
eel  of  the  Church.     Look  at  the  cases  referred  to  on  this  subject. 

"  Resolved,  That  at  and  after  the  meeting  of  the  Synod  of  Philadel- 


406  PRESBYTERIAN  CHURCH  CASE. 

phia  in  October  next,  the  Synod  of  Delaware  shall  be  dissolved,  and  the 
Presbyteries  constitiitins;  the  same  shall  be  then  and  thereafter  annexed 
to  the  Synod  of  Philadelphia:  and  that  the  Synod  of  Pliiladelphia  thus 
constituted  by  the  union  aforesaid  -shall  take  such  order  conccrnino;  the 
organization  of  its  several  Presbyteries  as  may  be  deemed  expedient  and 
constitutional: — And  that  said  Synod,  if  it  shall  deem  it  desirable,  make 
application  to  the  next  General  Assembly  for  such  a  division  of  the 
Synod  as  may  best  suit  the  convenience  of  all  its  Presbyteries,  and  pro- 
mote the  glory  of  God." — Min.  1835,  /;.  29. 

In  1834  the  Synod  of  Chesapeake  was  dissolved,  the  same  provision 
being  made  for  all  its  component  parts. — Min.  j).  37.  It  was  not  dis- 
owned or  cut  off,  but  there  was  merely  a  change  made  in  the  ecclesiasti- 
cal connexion  of  the  Presbyteries.  Keeping  them  within  certain  local 
bounds,  they  put  them  under  the  jurisdiction  of  superior  judicatories  to 
which  strictly  defined  physical  limits  were  fixed. 

"The  Committee  to  whom  was  referred  Overture  No.  8,  viz:  An  ap- 
plication to  have  the  Synod  of  the  Chesapeake  dissolved;  and  also  appli- 
cations from  the  Presbyteries  of  Lewes,  Wilmington,  and  Philadelphia 
2d,  as  constituted  by  the  Assembly,  to  be  constituted  into  a  new  Synod, 
made  a  report,  which  was  accepted  and  laid  on  the  table. 

*  ■*  *  *  5);  *  *  * 

"The  report  on  Overture  No.  8,  and  the  petitions  for  the  erection  of  a 
new  Synod,  was  taken  up  and  adopted,  and  is  as  follows,  viz:  Resolved, 

"  1.  That  the  Synod  of  the  Chesapeake  be,  and  the  same  is  hereby 
dissolved. 

"  2.  That  the  Presbytery  of  East  Hanover  be,  and  the  same  is  hereby 
restored  to  the  Synod  of  Virginia. 

"3.  That  the  Presbyteries  of  Baltimore  and  the  District  of  Columbia 
be,  and  the  same  are  hereby  restored  to  the  Synod  of  Philadelphia. 

"4.  That  the  Second  Presbytery  of  Philadelphia,  and  the  Presbyteries 
of  Wilmington  and  Lewes  be,  and  the  same  are  hereby  erected  into  a 
new  Synod,  to  be  called  the  Synod  of  Delaware,  &c." 

So  here  the  Synod  merely  was  dissolved,  the  Presbyteries  being  at- 
tached to  other  specified  Synods,  the  jurisdiction  of  which  was  extended 
over  them.;  or,  as  regards  some  of  the  Presbyteries,  the  name  merely  of 
their  Synod  being  in  effect  changed.  No  instance  previous  to  that  of 
1837  can  be  produced,  in  which  the  Assembly  has  pretended  to  cut  off  a 
Synod  and  all  its  constituent  Presl:)yteries  from  tiie  Church,  without  no- 
tice and  without  trial,  as  was  done  by  the  exscinding  resolutions. 

Now,  what  warrant  was  claimed  for  this  most  extraordinary  measure 
which  deprived  such  a  multitude  of  Presbyterians  of  .ill  their  ecclesiasti- 
cal rights?  It  is  said  that  the  Assembly  had  previously,  at  the  same  ses- 
sion, abrogated  the  plan  of  union  of  1801.  That  having  done  this,  they 
were  authorized  to  pass  the  exscinding  resolutions;  that  they  were  a  legis- 
lative measure  warranted  by  the  abrogation.  Our  opponents  tells  us  that 
the  said  plan  of  union  was  unconstitutional;  and  that  therefoi'e  they  were 
justified  in  cutting  off  the  whole  of  the  lai-ge  district  embraced  within 
the  limits  of  the  four  Synods.  Let  us  look  at  this  plan  of  union,  and 
see  whether  its  abrogation  warranted  the  subsequent  jiroceedings.  It  is 
found  in  the  Assembly's  Digest,  page  297.  Now  it  must  be  manifest  to 
any  one  who  will  look  at  it,  that  this  alliance  was  not  one  whit  stronger 


MR.  WOOD'S  ARGUMENT.  407 

and  more  intimate,  than  tliat  between  the  General  Assembly  and  the  As- 
sociation of  Connecticut,  which  existed  in  1799,  at  the  time  when  the 
charter  was  granted.  And  indeed  the  former  was  not  as  objectionable  as 
the  latter  in  point  of  bringing  into  the  judicatories  of  the  Presbyterian 
Church  members  of  another  denomination;  for  the  provision  of  1794 
permitted  delegates  from  the  Congregational  Association,  not  only  to  sit, 
but  also  to  deliberate  and  vote,  and  the  first  proposition  for  this  arrange- 
ment came,  not  from  the  Association,  but  from  the  General  Assembly 
itself.  The  provision  was  in  force  when  the  charter  was  passed — that 
charter  which  formed  and  moulded  this  Assembly  for  all  purposes  of 
law.  And,  gentlemen,  these  measures  of  alliance,  in  their  origin,  re- 
ceived the  support  of  not  only  Dr.  Green,  but  all  the  leading  members  of 
the  Presbyterian  Church — men  whose  names  stand  at  the  head  of  their 
order;  men  never  to  be  forgotten  so  long  as  this  Church  shall  last. 
There  was  the  Rev.  Dr.  Witherspoon,  not  only  a  distinguished  divine, 
but  also  an  able  statesman.  He  was  not  a  mere  closet  metaphysician:  he 
had  a  mind  able  to  em.brace  the  most  comprehensive  views  of  the  great 
advantage  which  society  at  large,  in  its  religious,  moral,  and  political 
character,  would  derive  from  such  harmonious  connexions.  He  saw 
that  they  were  calculated  to  foster  union  and  peace:  as  a  statesman  he 
knew  the  importance  of  these,  as  well  to  religious  as  to  political  institu- 
tions. Such  alliances  were  calculated  to  do  great  good,  and  in  forming 
them  every  good  man  might  with  propriety  engage.  In  the  early  settle- 
ments of  this  new  country,  they  were  to  the  pious  like  the  lever  of  Archi- 
medes: by  them  could  be  raised  a  moral  world.  The  objection  that  the 
"  Plan  of  Union"  brings  Congregationalists  into  the  body  of  the  Church 
is  not  true  in  the  sense  in  which  the  other  side  represent  the  matter. 
Look  at  this  plan. 

Mr,  Wood  here  read  the  second  and  third  sections  of  the  "  Plan." — 
Vid.  ante,  p.  49. 

Now  I  say  it  is  not  true,  that  either  of  these  provisions  brings  in  a 
single  Congregationalist.  The  members  of  Congregational  churches  can- 
not come  in  under  it,  nor  can  Congregational  ministers  come  in,  or  enter 
any  Presbyterian  judicatory,  from  the  lowest  to  the  highest.  In  nothing 
can  Congregationalists  be  identified  with  the  Presbyterian  Church.  The 
act,  so  far,  simply  authorizes,  what  is  very  natural  and  proper,  that  minis- 
ters may  preach  to  people  who  confessedly  agree  with  them  in  all  the 
essential  articles  of  faitli.  Is  not  this  allowed  in  the  Presbyterian  Church 
at  this  very  hour?  Does  not  that  Church  send  ministers  of  the  gospel  as 
missionaries,  to  preach  to  infidels,  pagans,  and  unbelievers  of  every  class; 
to  endeavour  to  convert  those  who  do  not  believe  in  Christianity  at  all? 
And  do  not  these  ministers  preach  to  such  without  being  assisted  in  their 
ministrations  by  a  single  elder?  They  must  first  convert  them  to  the 
faith  before  they  can  form  any  ecclesiastical  organization.  Is  it  true  that 
our  opponents  have  arrived  at  such  a  state  of  intolerance,  of  religious 
spite,  that  they  are  prepared  to  denounce  this  plan  of  union,  when  it  is 
accordant  with  the  plans  in  existence  at  the  time  when  the  charter  was 
granted,  and  with  the  plans  adopted  by  the  Presbyterian  Church  in  En- 
gland? Have  they  come  to  that  state  of  intolerance,  that  while  they 
preach  to  infidels,  they  are  opposed  to  the  principles  of  a  union  of  this 
kind,  adopted  by  the  patriots  of  the  Church  and  of  the  State?     Will  they 


408  PRESBYTERIAN  CHURCH  CASE. 

say,  "  You  may  preach  to  infidels  and  Pagans,  but  not  to  Congregational- 
ists:  they  are  infected,  and  you  cannot  be  allowed  to  approach  them?" 

There  is  one  remaining  provision  of  this  plan  to  which  I  request  your 
attention — that  which  authorizes  th;^  formation  of  mixed  churches,  partly 
Presbyterian  and  partly  Congregational.  Let  me  here  say,  that  the  dif- 
ference between  these  two  sects,  to  a  practical  man,  to  any  one  who  is 
not  a  mere  closet  metaphysician,  is  no  greater  than  that  between  tweedle- 
dum and  tweedle-dee. 

Here  Mr,  Wood  read  the  fourth  section. —  Vid.  ante,  p.  49. 

This  is  the  only  part  of  the  act  which  gives  foundation  to  the  slightest 
pretence  that  it  brings  in  Congregationalists.  The  standing-committee 
here  spoken  of,  is  to  be  appointed  only  in  those  churches  composed  partly 
of  Presbyterians  and  partly  of  Congregationalists.  But  shall  this  pro- 
vision destroy  the  character  of  a  plan  of  union,  the  benefits  of  which  arc 
such  as  I  have  described?  Is  there  any  thing  more  improper  in  this  alli- 
ance, than  in  those  of  a  like  kind  which  existed  at  the  time  the  charter 
was  granted?  Why  at  that  time,  delegates  from  the  Association  of  Con- 
necticut sat  in  the  Assembly,  which  also  sent  delegates  to  the  Association; 
and  these  were  allowed  not  only  to  sit  and  deliberate,  but  also  to  vote; 
this  too  in  the  highest  judicatory  of  the  Church — that  which  is  placed 
over  all  the  others.  Here,  in  the  Presbytery  alone,  a  member  of  a  stand- 
ing committee  of  a  church  partly  Presbyterian  and  partly  Congregational, 
is  allowed  to  sit  and  act  as  if  a  ruling  elder.  Which  of  these  interferes 
most  with  Presbyterian  order  and  government?  When  we  show  that  at 
the  time  the  act  of  the  legislature  was  passed,  unions  of  the  former  kind 
were  in  being,  are  you  prepared  to  say  that  this  plan  of  union,  founded  on 
the  same  principles,  but  not  carrying  them  out  so  far,  was  a  violation  of 
Presbyterian  institutions;  that,  after  it  had  been  in  operation  for  thirty- 
six  years,  dispensing  widely  its  benefits,  it  was  to  be  cried  down  as  uncon- 
stitutional and  void  ?  These  gentlemen  have  gotten  wise  too  late:  the  men 
of  1801  were  perhaps  as  wise  as  the  men  of  the  present  day.  Dr.  Green 
probably  had  as  much  wisdom  then  as  he  has  now.  It  was  too  late  to  make 
such  a  discovery  after  the  lapse  of  thirty-six  years.  The  act  had  been  in 
existence  that  long,  when,  all  at  once,  like  a  flash  of  lightning,  or  those 
flashes  of  genius  with  which  we  have  been  instructed  and  amused,  it  was 
announced  that  it  was  unconstitutional  and  void.  And  not  only  must  the 
plan  itself  be  abrogated,  but  its  effects  have  been  such,  that  all  the  eccle- 
siastical institutions  of  a  large  district  which  it  has  infected,  must  be  broken 
up  and  destroyed. 

But  we  are  told  that  the  "Plan  of  Union"  was  not  sent  down  to  the 
Presbyteries,  for  their  ratification,  and  that  therefore  it  was  void.  But 
what  required  that  it  should  be  sent  down?  Have  not  the  counsel  on  the 
opposite  side  spent  day  after  day  in  endeavouring  to  show  that  the  Assem- 
bly has  plenary  legislative  power,  citing  passage  after  passage  from  the 
Constitution,  to  support  this  doctrine?  But  suppose  that  it  ought  to  have 
been  referred  to  the  Presbyteries,  of  what  consequence  is  that  at  the  pre- 
sent day  ?  If  it  was  requisite,  in  order  to  make  it  of  binding  force  at 
first,  to  send  it  down  to  them,  and  it  was  not  sent  down,  yet  I  ask  you  as 
men  of  common  sense,  whether  an  uninterrupted  usage  of  thirty-six  years, 
the  acquiescence  of  the  Presbyteries  during  all  that  time,  does  not  amount 
to  a  ratification,  does  not  cure  the  original  defect.    If  any  principle  of  law 


MR.  WOOD'S  ARGUMENT.  AQa 

is  well  settled,  it  is,  that  a  usage  of  thirty  years  will  remedy  every  such 
defect,  in  the  case  of  both  individuals  and  all  these  inferior  institutions. 
By  consulting  Mathews  on  Presumptive  Evidence,  or  any  other  writer 
on  that  subject,  you  will  find  repeated  instances  of  long  usage  amounting 
to  a  ratification  under  similar  circumstances.  The  gentlemen  on  the  other 
side  have  referred  for  parallels  to  political  history,  to  cases  of  political 
revolution.  But  the  two  things  are  entirely  different.  These  subordi- 
nate institutions,  especially  those  of  a  religious  character,  whether  incorpo- 
rated or  not,  if  entrusted  with  charitable  funds,  are  subject  to  the  muni- 
cipal law  of  the  land,  are  all  governed  by  the  usages  and  principles  which 
regulate  the  conduct  of  individuals. 

Another  circumstance  of  vast  importance  in  this  part  of  the  case  is, 
that  in  1821  the  present  constitution  of  the  Presbyterian  Church  was 
formed  and  ratified  by  every  Presbytery  then  in  existence;  among  others, 
by  a  large  part  of  those  which  now  belong  to  the  four  exscinded  Synods. 
It  was  not  merely  amended,  but  the  whole  as  it  now  stands,  excepting 
such  parts  as  have  been  since  altered,  was  formally  adopted  as  the  consti- 
tution of  the  Church;  so  that  we  may  consider  it  an  entirely  new  con- 
stitution. I  say  that  all  the  Presbyteries  participated  in  its  formation. 
These  very  ones,  the  establishment  of  which,  as  it  is  alleged,  grew  out  of 
the  "Plan  of  Union,"  and  was  therefore  unconstitutional  and  void,  were 
parties  to  this  constitution,  just  as  much  as  the  Presbytery  of  Philadel- 
phia, to  which  Dr.  Green,  who  has  been  made  so  conspicuous  here,  be- 
longs. I  ask  whether  you  are  prepared  to  say,  that  these  Presbyteries 
which  met  upon  the  same  platform,  in  the  formation  of  the  constitution 
of  1821,  may  now  be  told  that  they  are  no  part  of  the  Church,  that  they 
are  entitled  to  no  share  in  its  benefits  and  blessings;  may  now,  at  one  fell 
swoop,  be  cut  off  from  all  their  ecclesiastical  rights  and  privileges. 

The  next  objection  made  against  the  "  Plan  of  Union" — the  next  con- 
stitutional objection — is  that  it  was  a  violation  of  the  charter,  which 
granted  a  franchise,  as  it  is  said,  only  to  the  ministers  and  elders  of  the 
Presbyterian  Church:  it  is  discovered  at  this  late  day,  that  the  General 
Assembly  is  not  to  be  considered  the  one  designated  by  the  legislature, 
when  in  alliance  with  a  Congregational  Association.  I  should  like  either 
one  of  the  learned  counsel  to  put  down  his  finger  on  a  single  point  of 
time,  since  the  Assembly  was  first  constituted,  when  some  such  alliance 
has  not  existed.  We  have  read  a  long  string  of  plans  of  union,  formed 
with  various  associations  and  Churches.  One  was  formed  with  the  Asso- 
ciation of  Vermont,  another  with  the  Association  of  Massachusetts, 
another  with  the  Reformed  Dutch  Church,  but  now  forsooth  a  mere  alli- 
ance of  the  same  kind  is  to  break  up  the  whole  ecclesiastical  system  of  four 
Synods.  Such  is  the  discovery  made  in  this  enlightened  age,  by  the 
Old-school,  who  have  also  introduced  sundry  otlicr  like  modern  improve- 
ments. But  I  have  shown  that  the  "  Plan  of  Union"  has  brought  in 
none  that  are  not  Presbyterians;  and  if  any  committee-men  had  in  any 
way  been  admitted,  the  evil  might  easily  have  been  avoided  for  the  future. 
But  in  1837,  after  a  lapse  of  thirty-six  years,  several  other  unions  having 
in  the  mean  time  been  formed,  that  of  1801  is  suddenly  found  so  uncon- 
stitutional, that  it  is  abrogated,  and  then  the  instant  effect  of  the  abroga- 
tion is  declared  to  be  the  cutting  off  of  all  the  Presbyterian  churches, 

52 


410 


PRESBYTERIAN  CHURCH  CASE. 


ministers,  and  people,  within  a  region  three  or  four  hundred  miles  in 
length! 

I  do  not  mean  to  stop  here,  to  inqure  whether  the  Assembly  had  a 
right  to  abrogate  the  '•  Plan  of  Union."  I  think  they  had  the  right. 
The  "  Plan"  was  not  a  compact.  It  was  merely  the  adoption  of  a  course 
of  measures  having  certain  practical  consequences;  but  while  it  might 
be  abrogated,  all  acquired  rights  should  have  been  preserved.  Suppose 
that  at  the  time  of  the  abrogation,  a  Presbyterian  pastor  has  entered  into 
connexion  with  a  Congregational  church;  has  formed  relations  which, 
perhaps,  are  to  continue  for  his  life.  You  cannot  by  such  an  act  as  this 
break  up  those  relations,  and  destroy  his  acquired  rights.  The  Assem- 
bly ought  to  have  abrogated  the  plan  of  1801,  if  it  must  be  abrogated, 
paying  a  due  regard  to  them.  I  may  mention  a  familiar  case  in  illustra- 
tion. It  is  the  practice  in  some  of  the  states  to  allow  aliens,  after  they 
have  resided  in  the  country  a  certain  period,  to  purchase  lands;  but  do 
you  think  that  by  the  repeal  of  such  a  law  the  rights  intermediately  ac- 
quired may  be  broken  down?  All  that  could  be  done  in  that  case,  by  abro- 
gating the  statute,  would  be  to  prevent  its  future  operation.  Any  con- 
nexion actually  existing  at  the  time  of  the  abrogation,  any  acquired  rights, 
must  be  carefully  preserved.  Here  they  have  not  only  not  preserved  the 
righls  of  the  Congregationalists,  who,  it  is  said,  have  been  admitted  under 
the  "  Plan,"  but  have  also  cut  off  whole  Presbyteries  of  undoubted  Pres- 
byterians; telling  them  indeed  that  such  as  are  considered  the  real  Simon 
Pure,  may  apply  for  admission,  and  that  then  the  Assembly  will  take 
order  upon  their  cases.  But  as  for  those  Presbyteries  which  contain 
Congregational  churches,  they  cannot  return  even  in  that  manner.  These 
are  told,  "  You,  indeed,  participated  in  the  formation  of  the  constitution 
of  1821;  by  you  among  the  rest  it  was  ratified;  but  now  we  exscind  you, 
leaving  no  provision  for  your  rejoining  the  Assembly  in  any  way." 
Could  any  act  be  fraught  with  more  monstrous  injustice?  Could  a  deli- 
berative assembly  commit  a  more  flagrant  enormity? 

But  the  learned  counsel  have  undertaken  to  justify  not  only  the  abro- 
gation, but  also  the  excision,  by  reference  to  the  conduct  of  the  New- 
school  in  1837.  This  they  represent  as  most  outrageous,  and  amply 
sufficient  to  warrant  all  the  measures  of  their  opponents.  You  observe, 
that  in  1838,  first,  certain  measures  were  resorted  to,  the  Old-school  hap- 
pening to  have  a  majority,  to  bring  up  for  trial  all  judicatories  charged  by 
common  fame  with  irregularity,  citing  them  to  the  bar  of  the  next  Gen- 
eral Assembly. 

Mr.  Wood  read  the  first  two  resolutions. —  Vid.  ante,  p.  38. 
Then  here's  the  rub:  "That,  as  citations  on  the  foregoing  plan  are 
the  commencement  of  a  process  involving  the  right  of  membership  in 
the  Assembly;  therefore,  resolved,  that  agreeably  to  a  principle  laid  down, 
Chapter  V.  Section  9th  of  the  '  Book  of  Discipline,'  the  members  of  said 
judicatories  be  excluded  from  a  seat  in  the  next  Assembly,  until  their 
cases  shall  be  decided."  There  is  work  for  you.  On  what  were  to  be 
founded  these  proceedings,  which  were  in  the  nature  of  a  criminal  prose- 
cution? On  common  fame.  But  those  provisions  of  the  Constitution 
which  permit  common  fame  to  be  the  basis  of  accusations  are  very  strict. 
"  In  order  to  render  an  offence  proper  for  the  cognizance  of  a  judica- 
tory, on  this  ground,"  (where  the  individual  is  accused  hy  common  fame 


MR.  WOOD'S  ARGUMENT.  411 

or  rumour.)  "  the  rumour  must  specify  some  particular  sin  or  sins;  it 
must  be  general,  or  widely  spread;  it  must  not  be  transient,  but  perma- 
nent, and  rather  gaining  strength  than  declining:  and  it  must  be  accom- 
panied with  strong  presumption  of  truth.  Taking  up  charges  on  this 
ground,  of  course,  requires  great  caution,  and  the  exercise  of  much  Chris- 
tian prudence." — Book  of  Discipline,  Chapter  III,  Section  5. 

The  rumour  must  "  specify  some  particular  sin  or  sins,"  must  be  gain- 
ing ground,  growing  stronger,  and  must  be  listened  to  only  with  great 
caution.  Now  it  might  have  been  supposed,  that  in  resorting  to  such  a 
measure,  the  Assembly  would,  at  least,  have  attended  to  the  requirements 
of  these  wholesome  and  charitable  provisions  of  the  Constitution,  which 
are  in  strict  accordance  with  the  whole  system  of  rules  established  for 
the  ecclesiastical  administration  of  justice.  The  particular  sin  is  required 
to  be  set  forth.  Here  they  had  not  ascertained  even  the  charge — not 
even  the  judicatories  that  were  to  be  cited!  The  discovery  of  these 
things  was  left  to  a  committee  vested  with  full  powers.  Then  it  is  pro- 
vided, that  the  commissioners  to  the  next  Assembly  from  every  judicatory 
cited  by  that  committee  shall  be  excluded  from  their  seats,  until  their 
cases  are  adjudged.  Now,  it  may  be  a  very  proper  provision,  that  if  the 
Synod  of  Albany  is  accused  of  irregularities  by  common  fame,  and  is 
brought  to  the  bar  of  the  Assembly  for  trial,  none  of  its  members  shall 
sit  during  such  trial.  But  suppose  the  Synod  of  Albany  is  charged  with 
one  oftence,  and  the  Presbytery  of  Buffalo  with  a  second,  and  the  Synod 
of  New  Jersey  with  a  third;  are  all  these  to  be  excluded  from  a  repre- 
sentation in  the  Assembly,  each,  not  only  while  its  own  case  is  under 
consideration,  but  while  the  rest  are  on  trial?  Here  all  are  thus  excluded, 
according  to  the  principles  of  the  exscinding  resolutions.  It  is  a  well 
known  maxim,  that  common  fame  is  a  common  liar;  yet  the  Assembly 
decrees,  that  one  judicatory,  charged  by  common  fame  with  irregularities, 
shall  not  be  represented,  until  similar  but  distinct  charges  against  several 
other  judicatories  shall  have  been  investigated  and  decided  upon.  But 
these  resolutions  had  a  still  more  radical  defect  in  that  they  made  no  spe- 
cific accusations,  but  left  the  preparation  of  charges  to  a  committee.  If 
that  committee  had  chosen  to  designate  six  Synods,  whether  they  were 
guilty  or  innocent,  their  representatives  must  be  left  out  of  the  next  As- 
sembly, until  the  cases  of  all  had  been  decided.  Yet  because  the  mem- 
bers from  the  four  Synods  would  not  vote  for  such  resolutions,  they  are 
malecontents,  that  do  not  belong  to  the  Church,  and  instead  of  being  cited 
and  tried,  they  must  be  exscinded. 

Next,  they  tell  us  that  these  men  were  opposed  to  the  measure  of  ab- 
rogation and  therefore  were  cut  off.  What?  has  it  come  to  this?  If  I 
am  a  member  of  a  corporate  body,  am  I,  because  I  don't  choose  to  vote 
for  a  measure  that  has  been  introduced,  to  be  stripped  of  all  my  corporate 
privileges?  Suppose  these  men  didn't  choose  to  assent  to  the  abrogation. 
They  may  have  thought  as  Dr.  Witherspoon  and  Dr.  Green  did,  when 
the  "  Plan  of  Union"  was  formed,  that  it  was  calculated  to  promote  har- 
mony and  peace,  and  to  prevent  alienation;  that  the  evils  which  had  been 
exhibited  or  complained  of,  had  not  grown  out  of  that  plan.  Yet,  be- 
cause they  voted  against  its  abrogation,  was  it  to  be  declared  that  they 
had  no  part  or  lot  in  the  Presbyterian  Church?  They  had  very  good 
reason  for  objecting  to  the  measure.     The  resolution  offered,  rested  on 


412  PRESBYTERIAN  CHURCH  CASE. 

the  ground  that  the  "Plan  of  Union"  was  unconstitutional  and  void. 
But  they  were  not  willing  to  subscribe  to  such  a  doctrine,  and  therefore 
would  have  opposed  the  resolution,  even  if  in  favor  of  the  abrogation. 

But,  next,  the  New-school  were  opposed  to  a  division  of  the  Church, 
and  rejected  various  propositions  or  protocols  on  this  subject  which  were 
laid  before  them.  Here  are  the  grounds  on  which  they  acted:  "The 
subscribers  had  believed  that  no  such  imperious  necessity  for  a  division 
of  the  Church  existed,  as  some  of  their  brethren  supposed,  and  that  the 
consequences  of  division  would  be  greatly  to  be  deprecated.  Such  ne- 
cessity, however  being  urged  by  many  of  our  brethren,  we  have  been  in- 
duced to  yield  to  their  wishes,  and  to  admit  the^xpedieney  of  a  division, 
provided  the  same  could  be  accomplished  in  an  amicable,  equitable  and 
proper  manner." — Vid.  ante. p.  40. 

"  During  the  progress  of  these  movements,  the  slight  shades  of  doctri- 
nal difference,  always  known  and  permitted  to  exist  in  the  church,  be- 
fore and  since  the  adopting  act,  and  recognised  in  every  form  as  consis- 
tent with  the  Confession  of  Faith  and  the  unity  of  the  spirit  in  the  bonds 
of  peace,  became  the  occasion  of  alarm,  and  whisperings,  and  accusations, 
and  at  length  of  ecclesiastical  trials  for  Iieresy;  while  doctrines  and  mea- 
sures unknown  to  the  Confession  were  selected  as  tests  of  orthodoxy." — 
Past.  Let.  Vid.  ante.  p.  190. 

And  again,  the  second  proposition  made  by  the  committee  of  the  mi- 
nority to  the  committee  of  the  majority:  "  That  the  Confession  of  Faith 
and  Form  of  Government  of  the  Presbyterian  Church  of  the  United 
States  of  America,  as  it  now  exists,  shall  continue  to  be  the  Confession 
of  Faith  and  the  Form  of  Government  of  both  bodies,  until  it  shall  be 
constitutionally  changed  and  altered  by  either,  in  the  manner  prescribed 
therein." — Vid.  ante.  p.  41. 

You  see  that  the  New-school  were  disposed  to  adopt  the  same  confes- 
sion of  faith,  or  articles  of  belief,  and  the  same  form  of  government  with 
the  opposite  party,  but  considered  that  the  slight  shades  of  difference  that 
existed  ought  not  to  be  regarded.  And  why  did  they  yield  this  opinion, 
and  attempt  to  negotiate  articles  of  separation?  Because  their  brethren 
desired  it;  and  all  which  was  said  by  the  committee  of  the  minority,  in 
regard  to  the  expediency  of  division,  was  in  acccordance  with  the  views 
of  the  Old-school,  and  not  with  their  own  views.  If  I  present  a  claim 
against  a  man  for  five  hundred  dollars,  and  we  compromise  it  for  two 
hundred  and  fifty,  the  compromise  is  not  an  admission  on  my  part  that 
the  whole  amount  of  the  claim  is  not  justly  due,  nor  on  his  a  denial  of 
his  indebtedness  for  the  full  sum  charged.  When  the  New-school  were 
greatly  pressed  and  urged  in  1S37,  they  said  that  there  was  no  occasion 
for  a  division  of  the  Church;  that  there  existed  but  slight  differences  of 
opinion  among  its  members;  that  all  still  adhered  to  the  same  confession 
of  faith  and  form  of  government.  What  the  real  differences  were,  I  leave 
to  the  subtlety  of  some  nice  closet  metaphysician  to  determine.  Yet 
the  New-school  were  willing,  for  peace's  sake  to  come  into  the  plans 
of  the  opposite  party,  and  to  agree  to  the  expediency  of  division.  On 
what  points  did  they  split?  I  think  them  immaterial,  but  let  us  refer  for 
a  moment  to  the  leading  ones.  The  Old-school  demanded  not  only  the 
old  name,  but  also  tlie  succession — in  fact  that  they  should  continue 
to  be  that  identical  General    Assembly.     They  wished  moreover  that 


MR.  WOOD'S  ARGUMENT.  4|3 

the  division  should  be  made  at  once,  while  the  New-school  said  that  it 
could  not  be  effected  immediately,  as  the  Assembly  was  a  mere  dele- 
gated body,  and  not  having  been  instructed  as  to  this  matter,  had  no 
power  to  act  definitively  therein.  And  does  not  their  book  say  the  same 
thing? 

"  No  delegated  body  has  a  right  to  transmit  its  powers,  or  any  part 
thereof,  unless  express  provision  is  in  its  constitution. 

"This  Assembly  is  a  delegated  body,  and  no  such  provision  is  in  its 
constitution." — Jlssem.  Dig.  p.  29. 

This  was  their  law.  Now  the  New-school  say,  "  We  are  members  of 
a  mere  delegated  body:  we  have  no  such  power  as  the  measure  urged 
upon  us  supposes.  We  are  willing  to  come  into  your  plan  for  a  division, 
but  it  must  first  be  ratified  by  the  Presbyteries  before  it  can  go  into  ef- 
fect." But,  the  Old-school  reply,  "  Now  is  the  time  for  the  division  to 
be  effected.  You  must  give  us  the  name  and  the  succession:  we  must 
remain  under  the  broad  canopy  of  the  charter;  and  we  must  separate  at 
once."  What  would  have  been  the  consequence  of  acquiesence  in  this 
proposal?  Why  the  New-school  must  have  been  regarded  as  seceders. 
Can  you  say  then  that  this  would  have  been  a  fair  and  proper  com- 
promise? If  the  Assembly  had  effected  a  division  without  referring  the 
matter  to  the  Presbyteries  it  would  have  been  unlawful.  In  point  of  law 
the  two  parts  would  yet  have  been  connected.  Any  minister,  church,  or 
Presbytery  yet  choosing  to  cling  to  the  name  and  the  succession,  might 
have  claimed  all  the  rights  and  privileges  of  membership,  being  still  an 
adherent  to  the  Presbyterian  constitution.  These  two  features  of  the 
plan  of  division  proposed  must  at  once  damn  it  in  all  honourable  minds. 
It  was  an  artifice,  which  if  completely  carried  out,  would  have  cheated 
every  one  of  those  who  agreed  thus  to  secede  out  of  all  their  ecclesiasti- 
cal rights,  and  left  them  perfectly  defenceless.  Every  minority  in  Pres- 
byteries and  Synods  might  have  claimed  the  whole  judicatory  as  its  own, 
because  it  still  adhered  to  the  true  General  Assembly.  But  no  alterna- 
tive was  to  be  allowed.  The  Old-school  party  happened  in  1837  to  be  a 
majority,  and  they  go  to  their  brethren,  and  holding  a  knife  to  their 
throats,  say,  "  Come,  divide  at  once.  We  will  have  nothing  to  do  with 
the  Presbyteries.  If  you  do  not  agree  to  our  proposal,  we  will  exscind 
you,  cut  you  off  for  ever  from  all  the  benefits  and  blessings  of  the 
Church." 

I  think  I  have  satisfied  you  that  our  opponents  cannot  justify  the  ex- 
cision as.  an  act  of  judicial  power.  I  think  I  have  satisfied  you  that  it 
did  not  follow  as  a  legitimate  consequence  from  the  abrogation  of  the 
"  Plan  of  Union."  What  then  is  left?  It  resolves  itself  into  an  act  of 
mere  political  revolntionary  power:  it  can  be  regarded  as  nothing  else. 
I  wont  stop  to  prove  that  it  was  not  a  lawful  exercise  of  legislative  au- 
thority. Tell  me  that  a  body  even  of  acknowledged  legislative  powers, 
may  cut  off  a  portion  of  its  members  and  strip  them  of  all  their  rights! 
Tell  me  that  in  a  municipal  corporation  which  has  more  power  than  is 
claimed  for  the  General  Assembly,  that  in  the  Common  Council  of  this 
city,  one  portion  of  the  members  may  cut  off  another  portion,  when 
they  don't  like  their  speeches  or  their  votes,  merely  because  they  have 
legislative  power — are  authorized  to  make  by-laws!  This  would  not  be 
an  exercise  of  legislative  power,  but  of  a  political  power,  which  is  be- 


414  PRESBYTERIAN  CHURCH  CASE, 

hind  all  legislation.  Such  acts  sap  the  foundations  of  society.  When  a 
legislature  cuts  off  a  part  of  its  constituency,  it  must  do  so  by  an  exertion 
of  brute  force  alone:  this  every  jurist  will  tell  you.  I  had  selected  a 
passage  from  Puffendorf  on  this  subject,  but  as  it  has  not  been  before  re- 
ferred to,  I  shall  not  trouble  you  with  it.  When  a  nation  severs  one  of 
its  own  limbs,  it  is  by  an  exercise  of  mere  violence,  which  there  happens 
to  be  no  superior  power  to  control.  For  nations  are  all  equal:  they  ac- 
knowledge no  sovereign.  But  it  is  not  so  with  our  subordinate  institu- 
tions, civil  and  ecclesiastical:  they  are  all  under  the  protection  and  super- 
intendence of  the  courts.  If  a  nation  attempt  to  cut  off  a  portion  of 
itself,  which  has  power  to  resist,  civil  war  is  the  result:  the  God  of  bat- 
tles presides  over  the  conflict,  and  awards  the  victory.  Where  is  this  to 
end,  if  the  power  of  cutting  off  be  once  established,  and  is  allowed  to 
prevail?  If  the  inhabitants  of  a  region  three  hundred  miles  in  extent, 
in  New  York,  and  of  a  large  part  of  Ohio,  are  now  to  be  stripped  of  all 
their  Presbyterial  rights,  in  1840  the  Presbyterians  of  Philadelphia,  or 
of  the  whole  of  Pennsylvania,  may  be  in  like  manner  exscinded.  If 
every  other  ecclesiastical,  and  every  civil  body,  can  exercise  the  same 
power,  it  must  involve  the  whole  country  in  confusion  and  discord,  and 
carry  revolution  and  anarchy  throughout  all  the  institutions  of  the  land. 
There  must  be  continual  divisions  in  both  Church  and  State.  Whenever 
there  is  a  difference  or  difficulty  in  a  public  body,  and  the  majority 
cannot  get  the  minority  to  agree  to  their  terms  for  an  amicable  division, 
the  latter  will  be  exscinded  and  thrust  out.  Once  establish  the  doctrine 
that  the  majority  may  at  pleasure  cut  off  the  minority  and  strip  them  of 
all  their  rights,  and  if  civil  war  does  not  ensue,  at  least  there  will  be  con- 
tinual tumult  and  bloodshed:  enormities  will  be  practised,  of  which  it  is 
impossible  to  anticipate  the  result. 

I  say,  then,  that  it  is  a  clear  position,  that  the  power  of  depriving  any 
one  of  rights  of  membership,  which  are  recognised  by  the  law,  is  a  judi- 
cial power,  and  can  never  be  exercised  without  a  sufficient  charge,  notice, 
and  a  trial.  I  might  here  refer  to  the  controlling  authority  which  the 
Court  of  King's  Bench  exercises  over  such  inferior  institutions  as  the 
Assembly;  but  the  principle  in  all  cases  is  the  same.  A  power  to  dis- 
franchise must  be  kept  within  reasonable  bounds;  and  courts  will  always 
say  what  was  determined  in  the  case  of  an  African  Methodist  Church; 
that  a  by-law  which  made  the  penalty  of  vilifying  a  member  of  the 
society,  disfranchisement,  was  unreasonable  and  therefore  void.  Any 
rule  which  prescribes  that  punishment  to  a  pett}'^  offence  must  so  be  de- 
clared. The  offence  committed  must  be  sufficient  to  justify  the  disfran- 
chising act,  in  the  eye  of  the  civil  law;  must  be  such  as  a  court  will  say 
warrants  excision;  and  then  there  must  be  notice  and  a  trial.  Here  again 
I  would  refer  to  Angell  and  Ames  on  Corporations,  244. 

"Where  the  rules  of  a  religious  society  inflicted  the  penalty  of  expul- 
sion on  any  member  who  should  commence  a  suit  at  law  against  another 
member,  'except  the  case  were  of  such  a  nature  as  to  require  and  justify 
a  process  at  law,'  a  return  to  a  mandamus  to  restore  a  member  to  his 
standing,  which  set  forth  the  rule,  and  also  that  the  expelled  member  had 
commenced  a  suit  against  another,  (without  averring  that  the  case  was  not 
of  such  of  a  nature  as  to  require  and  justify  a  process  at  law,)  was  held 
to  be  insufficient. 


MR.  WOOD'S  ARGUMENT. 


415 


"  In  none  of  the  above  cases,  wherein  it  is  considered  that  there  is  just 
and  sufficient  cause  for  amotion,  can  the  party  be  expelled,  unless  he  has 
been  duly  notified  to  appear.  *  *  *  But  the  court  were  clear,  that  there 
must  be  some  act  of  the  society,  declaring  the  expulsion;  and  that  this 
could  not  be  done  without  a  vote  of  expulsion,  after  notice  to  the  mem- 
ber supposed  to  be  in  default." 

Now  this  doctrine  becomes  infinitely  stronger,  when  you  consider  the 
nature  of  the  General  Assembly,  and  how  it  is  constituted.  It  is  a  mere 
delegated  body,  and  has  no  right  to  transfer  any  portion  of  its  powers. 
And,  on  whatever  principle  of  delegation  it  may  be  formed,  it  has  no 
powers  but  those  expressly  granted.  These  principles  the  Assembly  act- 
ed out,  before  such  times  of  excitement  and  party  spirit  as  the  present 
were  known.  "  No  delegated  body,"  it  was  said,  "  has  a  right  to  trans- 
fer its  powers,  or  any  part  thereof,  unless  express  provision  is  in  its  con- 
stitution. This  Assembly  is  a  delegated  body,  and  no  such  provision  is 
in  its  constitution,"  {Assemh.  Dig.  p.  29.)  Is  not  that  doctrine  applica- 
ble to  all  institutions  of  a  delegated  character?  Do  you  not  say,  that  if 
no  power  to  exscind  has  been  given  to  the  General  Assembly,  it  has  it  not; 
and  that  where  the  power  has  been  given,  it  can  be  exercised  only  by 
judicial  process,  after  notice,  and  upon  trial?  Here  again  I  refer  to  the 
Assembly's  Digest. 

"It  was  Resolved,  as  the  sense  of  this  house,  that  no  man  or  body  of 
men,  agreeably  to  the  constitution  of  this  church,  ought  to  be  condemned 
or  censured,  without  having  notice  of  the  accusation  against  him  or  them, 
and  notice  given  for  trial. — Vol.  I.  p.  77.   1793."   p.  323. 

Now,  with  hese  doctrines  staring  us  in  the  face,  every  heart  must  re- 
spond, that  by  the  extraordinary  proceedings  of  1837,  all  the  principles 
of  law,  and  justice,  and  common  sense,  were  wilfully  trampled  upon.  By 
their  own  brethren,  all  professing  to  bear  the  same  character,  with  a  word 
and  a  blow,  were  these  men  cut  off  from  the  rights  and  benefits  of  the 
Church;  from  every  one  of  those  privileges,  which  by  the  charter  of  in- 
corporation are  extended  to  Presbyterians  throughout  the  whole  extent 
of  the  United  States. 

Gentlemen,  it  is  unnecessary  for  me  to  make  any  farther  remarks  upon 
this  branch  of  the  subject.  Of  the  consequences  of  the  excision  you  are 
already  aware.  There  is  no  analogy  between  them  and  the  consequences 
of  such  a  dissolution  of  an  ecclesiastical  judicatory  as  has  been  adverted 
to.  The  Assembly  in  1837,  cut  off  from  all  connexion  whatever  with 
the  Presbyterian  Church,  upwards  of  fifty  thousand  communicants. 
Without  any  notice  or  warning,  this  great  mass  of  people  were  stripped 
of  all  their  ecclesiastical  rights.  Are  we  told  this  was  no  punishment,  no 
wrong.  The  law  says  otherwise.  It  vvill  not  allow  the  members  of  any 
subordinate  institution  to  be  excluded  from  the  exercise  of  their  rights, 
without  the  commission  of  any  offence,  without  any  trial.  Yet  here 
were  more  than  fifty  thousand  persons,  at  once,  at  a  single  blow,  deprived 
of  all  the  advantages  of  their  religious  connexions.  If  any  thing  is  a 
punishment  to  a  pious  man,  who  loves  religion,  and  values  ecclesiastical 
privileges  above  every  thing  else,  it  is  to  cut  him  off  in  an  instant  from 
the  communion  of  the  Church.  When  the  Jews,  in  exile  from  their  own 
land,  hung  their  harps  upon  the  willows,  they  mourned,  indeed,  the  loss 
of  friends  and  country,  but  more  than  all,  their  distance  from  Mount 


416  PRESBYTERIAN  CHURCH  CASE. 

Zion — the  loss  of  institutions  established  by  the  God  of  their  fathers,  of 
Abraham,  of  Isaac,  and  of  Jacob.  When  a  venerable  old  man  like  Dr. 
Richards  found  himself  without  trial,  and  not  conscious  of  having  com- 
mitted any  offence,  suddenly  cut  off  from  the  communion  of  the  Church, 
and  deprived  of  all  the  advantages  of  its  institutions,  what  must  have 
been  his  feelings?  What  the  feelings  of  those  other  venerable  men,  who 
at  one  fell  swoop,  were  excluded  from  their  religious  rights  and  privi- 
leges? 

There  is  one  farther  view  of  this  matter  which  I  may  here  take.  Sup- 
pose the  alliance  formed  by  the  "  Plan  of  Union"  was  so  objectionable, 
why  did  not  the  Assembly,  when  that  plan  vvas  abrogated,  adopt  the 
measure  of  dissolution,  which  would  have  allowed  time  for  the  evil  to 
have  passed  off  gradually,  and  would  have  been  perfectly  easy.  We 
have  proved  conclusively,  that  in  every  Presbytery  within  the  bounds  of 
the  four  exscinded  Synods,  there  was  a  sufficient  number  of  churches  and 
ministers  purely  Presbyterian,  to  form  a  constitutional  judicatory.  For 
this  I  refer  to  the  testimony  of  Mr.  Squier. 

Mr.  Hubbell.  We  offered  to  bring  testimony  t©  disprove  that  fact, 
but  it  was  rejected. 

Mr.  Wood.  The  counsel  offered  to  prove  only  that  Congregationalists 
and  Presbyterians  were  mixed  up  in  those  Synods,  and  we  don't  dispute 
that,  but  only  that  Congregationalists  predominated.  If  some  irregulari- 
ties had  occurred,  if  some  improper  persons  had  been  admitted  to  seats  in 
the  higher  judicatories — why  such  irregularities  are  incident  to  every 
human  tribunal.  There  is  not  an  institution  in  our  country — and  there  is 
no  other  country  so  filled  with  corporations — in  which  irregularities  do 
not  often  occur.  It  is  the  duty  of  such  an  institution  to  amend  itself,  to 
cure  or  heal  the  disorder;  not  to  cut  off  that  portion  of  its  members 
which  are  thought  to  offend,  without  trial,  without  any  hearing. 

I  think  then  that  the  court  will  say  with  no  hesitation,  that  the  ex- 
scinding resolutions  were  void,  and  in  no  way  to  be  regarded.  One  idea 
farther,  in  regard  to  the  position,  that  the  Assembly  has  a  right  to  judge 
of  the  qualifications  of  its  own  members.  It  may  judge  in  the  first  in- 
stance, but  all  these  subordinate  institutions  must  judge  rightly,  or  they 
form  an  unlawful  assembly,  and  the  civil  courts  will  decide  their  acts  to 
be  void.  There  are  certain  higher  institutions  which  are  in  all  such  cases 
the  last  resort.  Such  are  both  houses  of  Parliament,  our  House  of  Repre- 
sentatives and  Senate,  and  the  different  state  legislatures.  But  on  what 
principle  does  their  power  to  judge  of  the  qualification  of  members  rest? 
They  exercise  a  sovereign  authority;  that  is,  they  partake  of  a  sovereign 
nature,  and  the  courts  of  justice  cannot  reach  them  at  all.  But  it  is  not 
so  with  inferior  institutions,  which  are  under  the  entire  control  of  the 
law.  If  they  cut  off  any  portion  of  theirmembers  who  are  justly  entitled  to 
seats,  and  strip  them  of  their  privileges,  the  court  will  tell  them  that  their 
proceedings  are  void  and  illegal ;  that  they  will  not  be  allowed  to  de- 
prive members  of  their  just  rights.  I  hope  there  is  no  court  in  this  coun- 
try, which  would  hesitate  to  say,  when  men  have  been  cut  off  as  these 
have,  when  they  have  been  stripped  of  all  their  powers  and  privileges  as 
members  of  such  an  institution,  that  the  act  was  absolutely  null  and  void. 

May  it  please  your  Honour,  I  am  labouring  under  considerable  indispo- 
sition, and  must  beg  for  a  short  recess. 


MR.  WOOD'S  ARGUMENT.  417 

Judge  Rogers.  We  will  adjourn  until  Monday,  if  you  would  pre- 
fer it. 

Mr.  Wood.  I  had  rather  go  on  a  little  farther,  after  a  short  intermis- 
sion. 

(Here  the  jury  were  allov/ed  a  recess  of  ten  minutes.) 

Mr.  Ingersoll.  If  I  understood  the  learned  counsel  correctly,  he  has 
made  a  mistake  in  regard  to  an  important  fact.  I  understood  him  to  say, 
that  the  fourth  of  the  resolutions  in  regard  to  the  four  Synods,  requires 
that  the  individual  ministers  and  churches,  wishing  to  be  restored,  must 
make  application  to  the  General  Assembly.  If  this  was  his  meaning  the 
facts  do  not  bear  it  out. 

Mr.  Wood.  I  think  there  is  no  danger  of  misunderstanding  on  this 
point.  (Here  he  read  the  fourth  resolution. —  Vid.  ante.  p.  4Q.)  I  will 
read  in  connexion  with  this  the  other  resolution  before  alluded  to,  to  be 
found  in  the  Minutes  of  1837,  page  429.  "  That  the  constitutional  right 
of  every  Presbytery  to  examine  all  seeking  connexion  with  them,  was 
settled  by  the  Assembly  of  1S35,  (see  Minutes  of  1835,  p.  27.)  And  this 
Assembly  now  render  it  imperative  on  Presbyteries  to  examine  all  who 
make  application  for  admission  into  their  bodies,  at  least  on  experimental 
religion,  didactic  and  polemic  theology,  and  church  government." — Vid. 
ante.  p.  404. 

Now  the  effect  of  these  various  measures,  was  to  require  any  indi- 
vidual who  had  been  turned  out,  and  was  strictly  Presbyterian,  to  go  be- 
yond the  infected  district,  two  or  three  hundred  miles,  and  make  appli- 
cation to  be  re-admitted.  And  "any  such  Presbytery  as  aforesaid,  being 
strictly  Presbyterian  in  doctrine  and  order,  and  now  in  connexion  with 
either  of  said  Synods,  as  may  desire  to  unite  with  us,  are  hereby  directed 
to  make  application,  with  a  full  statement  of  their  cases,  to  the  next 
General  Assembly,  which  will  take  proper  order  thereon."  Taking  the 
whole  in  connexion,  and  examining  all  its  parts,  it  is  manifest  that  this 
plan,  if  carried  out,  would  have  prevented  any  member  of  any  of  the  four 
Synods  from  participating  in  the  organization  of  the  Assembly,  unless  he 
had  been  admitted  in  the  mode  appointed,  having  first  travelled  out  of 
his  own  region,  and  applied  for  admission  to  some  inferior  judicatory, 
having  been  examined  on  experimental  religion,  and  having  then  been 
restored  on  application  to  the  General  Assembly.  This  is  the  whole  pro- 
cess. In  order  to  get  back  at  all,  he  must  be  purely  Presbyterian;  then  if 
he  resided  in  Buffalo,  he  must  travel  some  hundred  miles  to  the  nearest 
Presbytery,  and  seek  admission;  and  then  his  case  would  be  referred  to 
the  General  Assembly  of  1838.  And  in  addition  to  this,  the  Presbytery 
to  which  he  applied  must  examine  him  on  experimental  religion.  How 
do  these  provisions  tally  with  that  found  in  the  Form  of  Government 
Chap.  X.  Sect.  2. — "  A  Presbytery  consists  of  all  the  ministers,  and  one 
ruling  elder  from  each  congregation  within  a  certain  district."  The 
members  of  the  four  Synods  were  told  that  no  judicatories  could  exist 
within  the  infected  region,  that  they  must  leave  the  ground  where  these 
bodies  had  taken  root  and  flourished;  that  it  was  not  Presbyterian 
ground;  and  that  they  must  travel  beyond  it  before  any  one  of  them 
could  come  up  to  the  Assembly  of  1838.  And  then,  that  they  must  not 
come  with  their  commissions  in  their  pockets,  to  be  referred,  in  the  first 
instance,  to  the  Committee  of  Commissions,  and   if  necessary,  through 

53 


418  PRESBYTERIAN  CHURCH  CASE. 

them  to  the  Committee  of  Elections,  but  the  Assembly  having  been  or- 
ganized without  them,  that  they  should  go  down  upon  their  knees,  and 
show  that  they  had  completed  all  that  the  resolutions  require;  that  they 
had  travelled  out  of  the  infected'  region,  been  examined,  though  some  of 
them  among  the  oldest  men  in  the  Church,  on  experimental  religion,  and 
found  purely,  and  strictly  Presbyterian,  and  now  laid  their  cases  before 
the  General  Assembly,  begging  that  it  would  condescend  to  take  order 
thereon.  And  even  then  they  might  not  be  instantly  admitted:  the 
matter  might  be  deferred  for  further  consideration. 

I  was  remarking,  gentlemen,  upon  the  distinction  between  such  infe- 
rior and  subordinate  institutions,  as  the  Assemhly,  which  are  all  under 
the  cognizance  and  control  of  the  courts  of  law,  and  those  higher  bodies 
of  a  sovereign  character,  like  the  British  House  of  Commons,  or  those 
like  our  own  House  of  Representatives  and  Senate,  and  our  various  state 
legislatures,  v.  hich  partake  of  the  attributes  of  sovereignty.  The  latter 
do  not  allow  any  court  to  interfere  with  their  judgment  on  the  rights  of 
membership.  But  this  is  not  the  cas'e  with  the  former,  the  subordinate 
institutions.  If  in  any  one  of  them  a  dispute  arise  as  to  the  formality  of 
a  commission,  first,  ex  necessitate  rei,  it  must  pass  on  the  case,  must  de- 
termine the  question.  But  whenever  it  undertakes  to  cut  off  a  part  of 
its  constituency,  to  strip  them  of  their  rights,  the  act  is  void  in  law;  and 
if  the  admitted  members  of  the  body,  choose  to  consider  this  as  a  dis- 
puted question,  and  endeavour  to  prevent  the  participation  of  the  re- 
presentatives from  the  part  exscinded  in  the  organization  of  the  body, 
or  in  its  deliberations  afterwards,  they  do  an  unlawful  act,  they  form 
an  unlawful  assembly,  and  it  is  the  duty  of  those  excluded  to  resist 
the  attempt,  and  to  organize  the  Assembly  lawfully.  I  think  no  one 
will  hesitate  to  say  that  this  is  sound  law.  In  the  heat  of  party  excite- 
ment, to  which  all  institutions  are  liable,  much  injustice  is  often  done. 
I  might  refer  to  the  case  of  the  British  House  of  Commons,  where  for  a 
long  period  back,  the  excitement  resulting  from  contested  elections  hav- 
ing been  found  injurious  and  productive  of  great  wrong,  these  have  been 
referred  to  a  committee  for  decision.  It  is  thought  that  a  claim  of  mem- 
bership should  not  be  considered  a  mere  party  question.  There  is  a 
striking  instance  of  a  sovereign  body,  which  has  a  perfect  right  to  judge 
in  all  such  matters,  and  which  no  court  of  justice  can  reach,  perfectly 
aware  of  the  difficulty,  and  labouring  to  remove  it.  The  House  of  Com- 
mons, high  and  sovereign  as  it  is,  and  possessed  of  every  kind  of  talent, 
considers  a  regulation  of  this  sort  necessary  for  its  own  government.  In 
our  subordinate  institutions  where  the  same  amount  of  talent  does  not 
exist,  the  right  of  deciding  on  the  qualifications  of  members  is  strictly 
controlled:  the  courts  of  law  exercise  a  superintending  authority  over 
their  decisions;  and  that  they  should,  is  the  dictate  of  sound  wisdom. 

At  an  earlier  stage  of  the  argument  the  proposition  was  advanced,  that 
any  assembly  of  one  of  these  inferior  bodies,  constituted  in  such  a  way, 
as  that  full  opportunity  is  not  given  to  every  member  to  come  in  and  ex- 
ercise his  rights,  is  an  unlawful  assembly.  And  every  one  entitled  to  a 
seat  must  have  the  opportunity  not  only  of  attending  but  also  of  acting. 
I  mean  to  show,  first,  that  this  is  the  law  of  the  land,  and  then  that 
the  Presbyterian  book  bears  out  the  civil  law.  I  refer  to  */lng.  £,' 
Ames,  27G— 9. 


MR.  WOOD'S  ARGUMENT'.  419 

"  Although  when  a  day  is  periodically  appointed  for  one  particular 
business,  no  notice  is  necessar}'  when  that  alone  is  to  be  transacted,  or  the 
mere  ordinary  affairs  of  the  corportion;  yet  when  the  intention  is  to  do 
other  acts  of  importance,  a  notice  is  required.  The  election  or  amotion 
of  an  officer,  a  by-law,  or  any  act  of  similar  importance,  on  any  day  not 
expressly  set  apart  for  that  particular  transaction,  is  illegal  and  void. 
When  a  particular  notice  is  required,  it  must  be  given  to  every  member 
who  has  a  right  to  vote,  whether  the  act  is  to  be  done  by  a  body  consist- 
ing of  all  the  definite  classes,  or  of  one  of  them  only."  And  this  law  is 
not  confined,  in  its  application  to  municipal  corporations.  It  is  all  the 
stronger  in  the  case  of  private  institutions,  by  so  much  as  it  is  to  be  pre- 
sumed that  they  have  less  knowledge  of  the  regular  manner  of  transacting 
business.  "  In  the  Supreme  Court  of  Connecticut,  in  a  case  in  which  it 
was  insisted  that  a  meeting  of  the  Middletown  Manufacturing  Company 
was  illegal,  Dagett,  J.,  who  gave  the  opinion  of  the  court,  observed — 'It 
is  very  clear  that  a  meeting  of  the  stockholders,  constituted  as  this  was, 
could  do  no  acts  binding  on  the  company.  Though  a  meeting  regularly 
warned,  would  be  competent  to  do  any  act  within  their  chartered  powers, 
by  a  bare  majority;  yet  if  not  thus  warned  the  act  must  be  void.  If  no 
.particular  mode  of  notifying  the  stockholders  be  provided,  either  in  the 
charter  or  in  any  by-law,  yet  personal  notice  must  be  given;  and  this  in 
such  a  case  would   be  indispensable,'  *  *  *  to  support  the  validity  of 

corporate  acts,  each  member  must  be  actually  summoned. 

******** 

"It  is  unnecessary,  that  the  notice  should  be  in  writing;  and  it  seems 
that  if  the  members  are  fully  informed  by  a  parol,  or  any  other  warning, 
that  there  is  to  be  a  meeting,  it  is  enough.  *  *  * 

"In  general,  the  notice  should  state  the  time  at  which  the  members  are 
to  assemble,  and  also  the  place,  if  different  from  the  place  where  meetings 
are  usually  held.  It  is  not  generally  deemed  necessary,  however,  to  state 
what  business  is  to  be  transacted,  when  it  relates  only  to  the  ordinary 
affairs  of  the  corporation.  But  if  there  is  to  be  an  election,  or  amotion, 
or  the  passage  of  a  by-law,  or  a  disposition  of  property,  some  intimation 
should  be  given;  for  such  members  as  may  not  think  their  attendance 
necessary  for  the  usual  routine  of  business,  will,  perhaps,  feel  it  their  duty 
to  attend  upon  such  occasions,  in  order  to  preserve  the  interest  and  good 
order  of  the  body  corporate,  and  the  fundamental  principles  of  its  insti- 
tution. *  ;^  .-^  *  *  *  * 

"  If  the  members  be  duly  assembled,  they  may  unanimously  agree  to 
waive  the  necessity  of  notice,  and  proceed  to  business;  but  if  any  one 
person  having  a  right  to  vote  is  absent,  or  refuses  his  consent,  all  extra- 
ordinary proceedings  are  illegal.  But  if  the  charter  requires  a  special 
notice,  it  cannot  be  dispensed  with,  even  by  unanimous  consent.  When 
some  of  those  who  have  a  right  to  vote,  are  assembled  upon  due  notice, 
and  all  the  others  who  have  a  right  to  notice,  attend  without  it,  and  agree 
to  enter  upon  the  proceedings,  it  is  a  legal  waiver  of  the  notice,  and  the 
act  of  the  assembly  cannot  be  impeached  for  the  omission  of  it." 

In  the  notes  it  is  said,  that  the  ringing  of  a  bell  has  been  determined 
not  to  be  reasonable  notice,  even  after  long  usage,  if  the  district  in  which 
the  members  live  is  so  large,  that  some  of  them  are  beyond  hearing  of 
the  bell.     These  passages  establish  beyond  a  doubt,  the  doctrine,  that  in 


420  PRESBYTERIAN  CHURCH  CASE. 

order  to  constitute  a  lawful  assembly,  every  member  who  has  a  right  to 
act,  must  also  have  an  opportunity  to  exercise  that  right.  Every  attempt 
to  shut  out  any  lawfully  entitled  member,  is  an  attempt  to  create  an  unlaw- 
ful assembly.  It  is  not  necessary  to  give  notice,  in  order  to  hold  a  stated 
meeting,  for  it  is  presumed  that  all  know  of  that,  and  have  the  means  of 
attending.  Therefore,  if  at  such  a  meeting,  a  sufficient  number  to  form 
a  quorum  is  present,  they  are  enough  to  transact  ordinary  business.  But, 
we  find  that  all  these  institutions  are  subject  to  the  same  law,  from  muni- 
cipal corporations  to  private  manufacturing  companies:  as  to  the  latter, 
Judge  Dagett's  opinion  is  express.  Each  member  must  have  notice  of 
the  time  of  meeting;  and  where  any  business  of  importance  is  to  be  trans- 
acted, out  of  the  ordinary  routine  of  duties,  notice  of  the  particular  busi- 
ness to  be  done  must  also  be  given.  The  same  doctrine  is  laid  down  in 
6  Viner^s  Abridgment,  269,  Sect.  11.  And  the  same  doctrine  by  the 
Presbyterian  Church;  or  a  doctrine  that  amounts  to  the  same  thing.  The 
passage  to  which  I  refer,  has  been  already  read  on  the  other  side.  It  is 
found  in  the  rules  adopted  by  the  Assembly  in  1S26: 

"After  the  delivery  of  the  commissions,  the  Assembly  shall  have  a 
recess,  until  such  an  hour  in  the  afternoon,  as  will  afford  sufficient  time  to 
the  committee  to  examine  the  commissions. 

"The  committee  of  commissions  shall,  in  the  afternoon,  report  the 
names  of  all  whose  commissions  appear  to  be  regular  and  constitutional; 
and  the  persons  whose  names  shall  be  thus  reported,  shall  immediately 
take  their  seats,  and  proceed  to  business." — Vid.  ante,  p.  156. 

In  this,  you  see  the  Assembly  acting  out  the  very  principle  for  which 
I  am  contending.  If  commissions  are  informal  and  irregular,  the  body 
must  be  organized  without  them,  and  they  must  be  passed  upon  at  a  sub- 
sequent period ;  but  it  is  the  duty  of  the  clerks  to  carry  out  the  same  prin- 
ciple in  each  case.  Each  member  has  a  right  to  require  that  his  com- 
mission shall  be  reported  on  by  the  clerks. 

Now,  if  the  exscinding  resolutions  were  as  utterly  void  as  I  think  I 
have  shown  them  to  be,  they  should  have  been  utterly  disregarded.  They 
were  precisely  similar  to  an  act  of  the  Common  Councils  of  Philadel- 
phia, cutting  off  four  of  the  city  wards,  without  notice,  or  accusation.  No 
court  would  hesitate  to  say,  that  an  excision  of  the  latter  kind  was  void, 
and  that  the  exscinded  wards  had  a  right  of  representation  in  the  subse- 
quent Council.  And  so  it  is  here.  It  has  been  proved,  that  every  one 
of  those  who  came  to  the  Assembly  of  1S3S,  from  the  four  exscinded 
Synods,  had  a  regular  and  strictly  formal  commission.  Their  due  elec- 
tion being  then  beyond  dispute,  what  was  there  to  keep  them  out?  No- 
thing but  a  void  act.  An  unlawful  deed  performed  in  1S37 — I  cannot 
say  a  deed  without  a  name,  for  it  has  gotten  the  name  of  excision.  An 
act  which  this  court  will  tell  you  was  entirely  void.  If  I  am  right  in 
this,  then  fairly  carrying  out  the  plain  principle  of  the  law  of  the  land, 
that  you  cannot  constitute  a  lawful  assembly  without  giving  every  mem- 
ber an  opportunity  to  come  in,  to  its  necessary  result,  it  is  evident  that 
the  General  Assembly  could  not  be  rightfully  organized,  without  giving 
every  regularly  elected  commissioner  an  opportunity  to  take  his  seat  at 
once.  And  any  Assembly  which  it  was  attempted  to  organize  in  1838, 
to  the  exclusion  of  the  commissioners  from  the  four  Synods,  exscinded 
in  1837  by  a  void  act,  the  law  cannot  for  a  moment  sanction.     They  all 


MR.  WOOD'S  ARGUMENT. 


421 


stood  on  a  platform  as  broad  and  strong  as  that  which  sapported  Dr.  Green. 
It  is  a  fact  not  to  be  disputed,  that  none  of  the  commissions  rejected  in 
1838,  were  irregular  or  informal;  that  there  was  no  case  of  contested  elec- 
tion; in  short,  that  there  was  no  difficulty  about  either  the  fact  or  manner 
of  the  election  of  a  single  commissioner  from  within  the  bounds  of  the 
four  Synods.  According,  then,  to  the  doctrine  of  their  own  book,  it  was 
the  duty  of  the  Committee  of  Commissions  to  put  their  names  upon  the 
roll,  in  order  to  enable  them  to  participate,  as  members,  in  the  organi- 
zation. 

I  now  proceed  to  the  next  branch  of  the  subject,  having  satisfied  you, 
as  I  think,  that  the  act  of  excision  was  void,  and  the  commissions  of  the 
commissioners  from  the  Presbyteries  belonging  to  the  four  Synods,  valid. 
Each  of  these  commissioners,  then,  had  a  right  to  take  his  seat  in  the 
Assembly  of  1838.  And  any  organization  of  that  body,  in  violation  of 
their  rights,  was  an  unlawful  organization,  and  not  the  true  Assembly. 
Now  there  was  a  concerted  plan  commencing  in  1837,  and  followed  up 
by  the  Moderator  and  clerks  of  that  year,  and  by  a  majority  of  the  Old- 
school,  to  carry  out  the  acts  of  excision,  by  preventing  any  organization 
in  1838,  which  should  embrace  the  commissioners  from  the  exscinded 
Synods.  In  other  words,  there  was  a  determined  purpose,  commencing 
in  1837,  and  carried  out  in  1838,  to  form  an  unlawful  Assembly.  This 
efibrt  of  the  Old-school  was  a  most  extraordinary  one.  In  fact  they 
passed  several  very  extraordinary  acts:  they  would  probably  have  done 
better,  had  they  too  consulted  counsel  learned  in  the  law.  But  they 
knew  perfectly  well  that  such  counsel  would  have  told  them  that  each 
General  Assembly  was  independent  of  every  other.  The  doctrine  ad- 
vanced by  the  opening  counsel  on  the  other  side,  in  regard  to  the  effect 
of  such  a  void  act,  upon  the  body  by  which  it  is  passed,  is  not  true  in  all 
the  extent  to  which  he  carried  it.  The  act  of  excision  did  not  destroy 
and  dismember  the  Assembly  of  1837,  and  make  all  its  subsequent  acts 
void.  It  still  continued  to  be  the  Assembly  de  facto,  so  long  as  there 
was  no  other,  its  acts  were  all  liable  to  be  set  aside.  But  each  body  is 
independent  of  the  rest,  and  therefore  the  acts  of  one  could  not  affect 
any  other.  The  institution  itself  is  permanent  and  cannot  be  destroyed. 
Each  House  of  Commons  or  House  of  Representatives  is  independent  of 
every  other,  and  an  attempt  by  one  house  to  destroy  or  vitiate  the  subse- 
quent one  would  be  idle  and  void.  The  institutions  must  exist  as  long 
as  their  respective  countries. 

It  is  very  evident  that  in  all  their  subsequent  measures  the  Old-school 
were  endeavouring  to  act  out  the  exscinding  resolutions.  After  passing 
them,  the  first  thing  done  was  to  pass  an  act,  providing,  as  they  say,  the 
means,  by  which  alone  those  who  had  been  excluded  could  get  back  again 
into  the  Church.  They  were,  as  stated,  to  travel  out  of  the  infected  region 
to  neighbouring  Presbyteries,  to  submit  to  examination,  and  then  to 
apply  to  the  Assembly.  This  was  the  only  mode  of  restoration.  The 
Old-school  seem  to  have  had  a  squinting  of  the  fact  that  their  measures 
were  not  good  in  law;  but  seem  likewise  to  have  thought,  that  as  they 
had  not  consulted  counsel,  they  were  above  all  law — entirely  independent 
of  it.  Supposing,  at  any  rate,  after  provision  had  been  made  for  restor- 
ing such  as  chose  to  come  back,  that  they  might  proceed  with  impunity, 
being  exempt  from  all  liability,  they  determined  to  infuse  the  conse- 


422  PRESBYTERIAN  CHURCH  CASE. 

qnences  of  the  acts  of  1837  into  the  Assembly  of  1838.  Shortly  after 
the  exscinduig  resolutions  were  adopted,  it  seems  to  have  suggested  itself, 
that  the  trustees  might  be  the  sticking  point,  and  therefore  an  act  of  in- 
demnity was  passed.  {Vid.  ante,  p.  47.)  It  was  hoped  that  they 
would  assist  in  carrying  out  the  measures  of  excision,  but  the  Assembly 
anticipating  that  those  who  had  been  cut  off  would  not  remain  quiet, 
promised  to  indemnify  the  trustees.  They  knew  perfectly  well,  that 
under  the  rules  of  the  house,  their  clerks  and  Moderator  would  have 
something  to  do  in  the  organization  of  the  next  Assembly.  Tiie  learned 
counsel  has  been  pleased  to  regard  these  officers  as  a  sort  of  germ  of  the 
new  body.  A  very  singular  doctrine;  for  if  a  germ  be  destroyed  there 
can  be  no  growth;  but  the  loss  of  the  officers  of  the  Assembly  may  be 
supplied.  In  the  organization  of  any  Assembly,  the  Moderator  and 
clerks  are  mere  officers  of  the  body  and  nothing  else.  The  only  object 
of  continuing  them  in  office  is,  the  saving  of  trouble  in  choosing  others; 
but  they  have  no  greater  powers  than  if  they  had  been  chosen  for  the 
purpose  of  organizing  the  house.  In  order  to  infuse  the  acts  of  1837 
into  the  Assembly  of  1838,  to  carry  out  the  exscinding  resolutions,  it  is 
proposed  to  require  a  pledge  from  the  clerks,  who  consequently  say  that 
a  pledge  is  unnecessary,  that  they  already  feel  bound  to  act  in  accordance 
with  those  resolutions.  "  Oh,  but  they  gave  no  pledge,"  says  the  learned 
counsel.  What  was  this  but  a  pledge?  If  it  was  not  one,  it  was  so  near 
like  it,  that  it  would  be  very  difficult  to  distinguish  the  difference  between 
the  two.  To  be  sure  they  did  not  use  the  word  pledge,  but  what  was 
the  object  of  their  explanations  at  that  critical  time?  Why  did  they  give 
assurances  to  the  Assembly  of  1837,  that  they  would  act  out  its  void 
resolutions?  Their  object  manifestly  was  to  make  a  formal  pledge  unne- 
cessary, by  engagements  equivalent  thereto,  though  couched  in  different 
terms.  And  in  consequence  of  the  assurance  thus  given,  a  pledge  was 
not  exacted.  We  find,  then,  the  old  Assembly  of  1837,  though  admitted 
to  be  independent  of  every  other  Assembly,  precedent  and  subsequent, 
attempting  to  carry  out  its  illegal  measures  by  pledging  the  clerks.  It  is 
a  little  singular  that  neither  Mr.  Ewing's  resolution,  calling  for  a  pledge, 
nor  the  statement  of  the  clerks,  nor  the  consequent  withdrawal  of  the 
former,  appear  at  all  upon  the  Minutes.  Why  not?  I  can  see  no  other 
reason  fur  the  omission,  than  that  Dr.  McDowell  didn't  like  to  let  these 
things  appear,  because  he  saw  that  he  had  done  wrong.  In  1838,  he  said 
to  the  rejected  commissioners,  "  I  can't  receive  your  commissions,  but  I 
don't  think  the  decision  of  the  Assembly  right.  My  own  private  views 
are  so  and  so."  On  account  of  his  declaration  in  1837 — call  it  a  pledge, 
or  what  you  will — he  felt  bound  to  refuse  the  commissions,  though  he 
believed  that  the  exscinded  acts  were  void,  and  ought  to  be  disregarded. 
We  can  imagine  some  excuse  for  his  neglecting  to  put  these  proceedings 
upon  the  Minutes.  The  recording  angel  is  represented  as  sometimes 
dropping  a  tear  to  blot  out  a  memorial  of  human  weakness.  I  doubt  not 
that  Dr.  McDowell  was  willing  to  drop  a  similar  tear. 

I  have  now  done  with  the  Assembly  of  1837.  I  have  shown  that 
the  acts  of  excision  passed  were  void;  but  that  nevertheless  after  passing 
them,  the  Old-school,  labouring  under  the  influence  of  strong  excitement, 
attempted,  by  all  the  means  in  their  power,  by  an  offer  of  indemnity  to 
the  trustees,  and  by  pledging  the  clerks,  to  infuse  these  acts  into  the 


MR.  WOOD'S  ARGUMENT.  423 

organization  of  the  Assembly  of  1838.  Now  then  we  come  to  the  Assem- 
bly of  1838,  and  there  we  find  the  same  parties  acting  out  these  very 
measures.  First,  the  Old-school  commissioners,  secondly,  the  clerks,  and 
thirdly,  the  Moderator.  In  the  first  place  the  Old-school  commission- 
ers— this  prior  to  the  organization  of  the  Assembly. 

In  a  preliminary  convention  of  the  members  to  the  Assembly  of 
1838 — for  all  were  invited  to  attend — the  following  proposal  was  sent  to 
the  Old-school  commissioners,  convened  in  another  place. 

Here  Mr.  Wood  read  the  proposal,  with  the  reply  of  the  Old-school. 
Vid.  ante,  p.  191. 

Now  there  you  have  full  and  complete  evidence,  that  the  Old-school 
were,  in  1838,  acting  out  the  resolutions,  and  were  determined  to  orga- 
nize the  Assembly  upon  the  principles,  of  1837.  They  say  distinctly, 
"We  will  stand  by  the  measures  of  1837:  we  cannot  acknowledge  any 
connexion  with  the  commissioners  from  the  four  Synods,"  Or,  in  other 
words,  "  We  mean  to  organize  the  Assembly  of  1838,  to  the  entire  ex- 
elusion  of  the  representatives  from  all  the  Presbyteries  within  the  ex- 
scinded district,  with  this  exception:  that  those  that  have  travelled  out  of 
that  distr:.',  been  examined,  and  admitted,  may  come  before  the  Assem- 
bly and  present  their  cases;  and  then  if  that  body  chooses  it  may  restore 
them.  You  see  here  a  determined  plan,  clearly  expressed  in  their  own 
published  resolutions,  to  organize  the  Assembly  of  1838,  to  the  exclusion 
of  certain  commissioners.  It  is  plain  that  they  meant  to  exclude  every 
commissioner  coming  from  the  infected  region,  unless  such  as  were  sent 
by  Presbyteries  which  had  complied  with  the  specified  terms  of  restora- 
tion. They  were  not  to  apply  as  members,  but  were  to  come  begging 
for  relief,  which  was  to  be  extended  to  them,  after  examination,  if  they 
should  prove  purely  Presbyterian  in  doctrine  and  order.  Now  we  are 
certainly  warranted,  after  a  protocol  of  this  kind,  to  say,  that  the  design 
of  those  members  of  the  Old-school,  who  had  clustered  around  the  Mode- 
rator at  such  an  early  hour,  and  of  the  clerks,  who  had  locked  the  door,  a 
thing  which,  notwithstanding  all  that  has  been  said  by  the  learned  gentle- 
man [Mr.  Preston)  who  told  the  story  so  lugubriously,  had  never  been 
done  before — that  their  design  was  to  organize  the  new  body  on  the  plan 
of  exclusion,  and  to  carry  out  the  resolutions  of  the  previous  year.  We 
are  warranted  in  saying,  that  those  who  clustered  around  the  Moderator, 
and  the  paraphernalia  of  office,  were  determined  to  proceed  on  the  princi- 
ples of  1837,  to  organize  an  unlawful  Assembly. 

Now  we  come  to  the  conduct  of  the  clerks,  and  we  find  them,  in  pre- 
cisely the  same  manner,  attempting  to  act  out  the  exscinding  resolutions. 
Their  powers  and  duties  are  fully  enjoined  in  the  rule  which  has  already 
been  read.  "The  Committee  of  Commissions  shall,  in  the  afternoon, 
report  the  names  of  all  whose  commissions  shall  appear  to  be  regular  and 
constitutional,  and  the  persons  whose  names  shall  be  thus  reported,  shall 
immediately  take  their  seats,  and  proceed  to  business."  Ante,  p.  156. 
And  it  is  also  the  duty  of  the  clerks  to  report  the  informal  or  doubtful 
commissions,  and  lay  them  before  the  Assembly,  to  be  referred  to  the 
Committee  of  Elections.  But  what  did  the  clerks  do?  They  acted 
upon  the  same  principles  as  the  Old-school  commissioners.  The  com- 
missions from  the  exscinded  Presbyteries  were  laid  before  them.  Were 
they  examined?     Not  one  of  them.     The  answer  to  the  commissioners 


424  PRESBYTERIAN  CHURCH  CASE. 

was,  "We  can't  receive  them:  we  don't  know  you:  you  can't  come  in." 
If  I  am  right  in  saying  that  the  acts  of  1837  were  void  in  law,  the  clerks 
ought  to  have  disregarded  them  entirely.  Suppose  the  judgment  of  a 
court  of  justice  is  void,  it  don't  justify  the  sheriff  who  serves  an  execution 
issued  upon  it.  Are  we  told  that  these  exscinding  acts,  completely  dis- 
franchising two  hundred  thousand  souls,  and  stripping  them  of  all  their 
rights,  were  to  be  carried  out  by  mere  clerks,  or  by  a  Moderator;  and 
that  the  Assembly  organized  to  the  exclusion  of  the  representatives  of 
this  great  body  of  people,  was  a  valid  and  lawful  body? 

Now  for  the  Moderator.  We  find  him,  in  conjunction  with  the  Old- 
school,  entirely  ready  to  act  out  the  whole  of  the  measures  of  1837.  In 
the  first  place,  let  us  look  at  Dr.  Patton's  resolution.  What  was  his  object? 
To  get  the  names  of  the  commissioners  who  had  been  rejected,  on  the  roll. 
He  was  called  to  order  by  the  Moderator.  He  appealed  from  the  deci- 
sion, but  the  appeal  was  not  allowed  to  go  to  the  house:  it  also  was  pro- 
nounced out  of  order.  I  do  not  care  whether  the  Moderator  said,  sim- 
ply, "You  are  out  of  order;"  or,  "You  are  out  of  order  at  this  time." 
I  will  show  clearly  what  he  was  doing — that  he  was  acting  out  the  exscind- 
ing resolutions;  and  was  determined  to  exclude  all  the  commissioners 
from  the  four  Synods,  excepting  those  admitted  in  the  mode  pointed  out 
in  1837;  those  who  should  come  in  and  submit  to  an  examination.  The 
roll  which  had  been  made  up  by  the  clerks,  was  then  called  for  and  re- 
ported, when  Dr.  Mason  rose:  his  object  also  being  to  get  upon  the  roll, 
the  names  of  about  sixty  commissioners,  who  had  been  rejected.  He 
wished  to  lay  their  commissions  before  the  house — sixty  commissions,  all 
formal  and  regular:  that  they  were  not  so,  has  not  been  pretended.  It 
was  perfectly  plain,  that  there  had  been  a  gross  violation  of  duty  on  the 
part  of  the  clerks,  under  the  rules  of  the  house;  yet  the  Moderator,  in 
the  plenitude  of  his  assumed  power;  in  violation  of  the  rules  of  law;  in 
violation  of  the  rule  of  the  Church,  which  I  before  read  from  the  Digest; — 
that  no  one  shall  be  disfranchised  without  notice  and  a  hearing;  in  viola- 
tion of  the  rules  of  1826;  though  the  commissions  presented  were  all 
formal  and  regular;  says  to  Dr.  Mason,  "We  can't  receive  them:  they 
are  out  of  order" — "  out  of  order  at  this  time,^'  if  you  please.  Well, 
next  Mr.  Squier  presents  his  case.  He  comes  with  his  commission  in 
his  hand;  says  that  he  had  gone  before  the  clerks  and  presented  it;  that 
it  is  a  valid  commission,  but  has  been  rejected  by  them;  and  he  demands 
his  seat.  It  seems,  that  pretty  much  about  the  same  time,  Mr.  Moore,  who 
hasn't  yet  presented  his  commission  at  all,  goes  up  to  the  clerks  to  pre- 
sent it.  Why  was  not  Mr.  Squier  admitted  ?  Because,  as  we  have  before 
shown,  the  Moderator  was  acting  out  the  resolutions  of  1837.  We  have 
shown  that  the  Old-school  party  were  doing  this;  then,  that  the  clerks 
were  doing  it;  and  now  it  appears  that  the  Moderator  was  engaged  in  the 
same  plan.  What  did  Dr.  Elliott  reply  to  Mr.  Squier's  application?  He 
asked  where  he  was  from.  From  such  a  Presbytery,  was  the  answer. 
Where  is  that  Presbytery?  It  is  within  the  bounds  of  such  a  Synod. 
"We  don't  know  you."  Why  not?  The  Synod  from  which  he  came, 
had  been  cut  off;  and  he  was  not  to  get  back,  unless  by  going  out  of  the 
infected  district,  submitting  to  an  examination  on  experimental  religion, 
and  then  presenting  his  case  to  the  Assembly,  that  they  might  take  order 
upon  it.    Now,  let  us  suj)pose  a  case.    Suppose  that  the  clerks  had  chosen 


MR.  WOOD'S  ARGUMENT. 


425 


to  leave  off  of  the  roll,  the  names  of  fifty  Old-school  commissioners,  and 
had  not  reported  their  commissions  as  informal,  but  left  them  out  all  to- 
gether. Do  you  believe  that  any  Old-school  Moderator  would  have  said 
to  these,  when  they  demanded  their  seats,  or  desired  to  lay  their  commis- 
sions before  the  house,  "  We  don't  know  you.-*"  An  Old-school  Mode- 
rator was  presiding  at  that  time;  and  he  had  himself  called  for  commis- 
sions, which  had  not  been  presented  to  the  clerks  and  enrolled.  This  we 
have  shown  by  his  own  testimony. 

Mr.  Huhbell.    That  was  not  his  testimony.    It  was  Mr.  Plumer's. 

Mr.  Wood.  Dr.  Elliott  said,  that  he  called  for  commissions  which  had 
not  been  presented  and  enrolled.  Bui,  suppose  he  called  only  for  those 
which  had  not  been  presented,  and  fifty  Old-school  commissions  perfectly 
regular  and  formal,  but  which  had  been  presented  already,  had  been 
offered,  do  you  believe  he  would  have  rejected  them?  Not  a  man  of  the 
whole  number.  He  would  have  received  them,  because  he  wished  to 
receive  them.  If  it  was  the  duty  of  the  clerks  to  report  all  the  commis- 
sions, both  formal  and  informal,  and  if  they  had  violated  that  duty,  it  was 
not  enough  to  say,  that  the  Assembly  could  remedy  the  evil,  and  heal  the 
breach  that  had  been  made.  On  this  doctrine,  the  clerks  could  shut  out 
nearly  the  whole  of  the  commissioners — two  or  three  hundred — all  but 
fourteen,  enough  to  form  a  quorum.  They  might  cut,  and  carve,  and 
mould  the  Assembl)'  just  as  they  pleased.  Here,  then,  was  a  gross  vio- 
lation of  duty — the  rejection  of  these  men,  in  furtherance  of  a  void  and 
unconstitutional  measure.  Here  was  a  Moderator,  a  mere  ministerial  offi- 
cer of  the  house,  not  chosen  by  the  body  itself,  decreeing,  in  the  plenitude 
of  usurped  power,  that  that  was  not  the  proper  time  for  these  commis- 
sions to  be  received.  And  when  would  the  proper  time  have  come? 
This  was  just  on  the  eve  of  the  organization's  being  completed.  Was  the 
right  time  after  the  appointment  of  a  Committee  of  Elections?  All  the 
books  show  that  they  are  appointed  to  pass  judgment  on  informal  com- 
missions. "  The  committee  of  commissions  shall,  in  the  afternoon,  report 
the  names  of  all  whose  com.missions  shall  appear  to  be  regular  and  con- 
stitutional; and  the  persons  whose  names  shall  be  thus  reported,  shall 
immediately  take  their  seats,  and  proceed  to  business. 

"  The  first  act  of  the  Assembly,  when  thus  ready  for  business,  shall  be 
the  appointment  of  a  Committee  of  Elections,  whose  duty  it  shall  be  to 
examine  all  informal  and  unconstitutional  commissions,  and  report  on  the 
same  as  soon  as  practicable." — Vid.  ante, p.  156. 

Now  you  observe  that  this  Committee  of  Elections  is  to  be  appointed 
after  the  house  is  organized.  And  what  is  the  duty  of  the  committee? 
The  commissions  which  the  clerks  have  decided  to  be  informal  or  ir- 
regular, are  to  go  to  the  Committee  of  Elections:  those  are  the  only  ones 
which  the  clerks  are  to  exclude  from  the  roll.  Yet  it  is  contended  on 
the  other  side,  that  they  had  power  to  shut  out  from  the  Assembly  some 
whose  commissions  were  entirely  regular,  and  that  the  Moderator  had  a 
right  to  carry  out  their  act,  and  prevent  the  Assembly  from  passing  on 
the  subject.  You  perceive  that  when  the  Moderator  had  refused  to  en- 
tertain Dr.  Mason's  motion,  he  appealed,  and  his  appeal  was  seconded; 
but  that  Dr.  Elliott  refused  to  allow  even  the  appeal  to  be  put  to  the 
house.  If  our  opponents  attempt  to  shelter  themselves  under  the  idea 
that  these  commissions  should  have  been  referred  to  the  Committee  of 

54 


426 


PRESBYTERIAN  CHURCH  CASE. 


Elections,  I  say  that  that  committee  was  to  be  appointed  so  as  to  suit  the 
purposes  of  the  Old-school,  to  execute  their  determined  plan.  But  they 
didn't  mean  that  they  should  go  before  the  committee:  only  those  re- 
ported by  the  clerks  as  irregular  go  to  them.  What  was  Dr.  Mison's 
object?  It  was  to  bring  the  matter  before  ihe  house.  If  it  was  designed 
to  admit  lliese  commissioners,  so  that  a  lawful  Assembly  might  be  formed, 
that  was  tlie  last  point  of  time  at  which  it  could  be  done.  If  it  was  really 
the  object  of  the  Moderator  to  get  them  in,  that  was  the  only  chance  of 
accomplishing  his  plan.  But  he  takes  upon  himself  tlie  responsibility  of 
rejecting  them,  and  not  only  refuses  to  put  a  motion,  but  farther,  when 
an  appeal  is  taken,  refuses  to  put  the  appeal.  He  would  not  suffer  the 
rejected  commissions  even  to  be  laid  on  the  clerks'  table,  to  be  considered 
as  before  the  house  at  all. 

But  some  difficulty  has  been  made  in  regard  to  the  precise  words  of 
the  Moderator.  In  order  to  show  his  meaning,  which  is  my  only  object, 
and  that  he  was  plainly  acting  out  the  void  resolutions  of  1837,  I  refer  to 
the  Old-school  Minutes  of  1838.  I  read  their  own  minute  of  the  transac- 
tion, verified  by  Dr.  Elliott  himself,  who  says  that  although  it  does  not 
narrate  all  that  happened,  it  is  true  so  far  as  it  goes.  When  Dr.  Mason 
offered  the  commissions,  "  The  Moderator  inquired  if  they  were  from 
Presbyteries  belonging  to  the  Assembly,  at  the  close  of  the  sessions  of  last 
year."  Why  did  he  make  this  inquiry  if  his  object  was  to  know  merely 
whether  they  had  been  presented  to  the  clerks  or  not?  If  his  object  was 
to  exclude  a  certain  class  of  commissions,  it  was  very  proper  to  ask  Dr. 
Mason,  whether  they  were  from  Presbyteries  in  connexion  with  the 
Church,  at  the  close  of  the  Assembly  of  the  last  year.  "  Dr.  Mason  re- 
plied that  they  were  from  Presbyteries  belonging  to  the  Synods  of  Utica, 
Geneva,  Genesee,  and  the  Western  Reserve.  The  Moderator  then  stated 
that  the  motion  was  out  of  order  at  this  time.  Dr.  Mason  appealed  from 
the  decision  of  the  Moderator;  which  appeal,  also,  the  Moderator  declar- 
ed to  be  out  of  order,  and" — did  what?  Does  he  mean  to  refer  them  to 
the  Committee  of  Elections? — "and  repeated  the  call  for  commissions 
from  Presbyteries  in  connexion  with  the  Assembly."  f^id,  ante,  p.  220. 
He  did  not  consider  the  exscinded  Synods  as  in  connexion  with  the  As- 
sembly at  all.  The  refusal  was  not  for  that  time  alone.  His  language 
was,  "  I  am  acting  as  Moderator  of  the  Assembly  of  1837,  and  intend  to 
carry  out  the  measures  of  that  body.  I'll  join  the  clerks  in  the  attempt 
to  shut  you  out  entirely.  If  you  make  a  motion  even  to  lay  these  com- 
missions on  the  table,  I'll  refuse  to  entertain  it,  I'll  pronounce  it  out  of 
order;"  then  he  goes  on  to  call  for  commissions  coming  from  Presbyte- 
ries in  connexion  with  the  General  Assembly,  and  if  any  are  presented 
inquire  whether  they  are  from  such  Presbyteries.  Does  not  all  this  show 
as  plainly  as  day,  that  the  object  of  the  Moderator  was  to  shut  out  these 
men  both  before  and  after  the  organization;  that  he  did  not  intend  them 
to  come  in  through  the  Committee  of  Elections,  nor  in  any  other  way, 
unless  according  to  the  resolutions  of  1837,  by  submitting  to  examina- 
tion, after  applying  to  the  adjoining  Presbyteries,  and  then  presenting 
themselves  before  the  Assembly  for  that  body  to  take  order  upon  their 
cases?  His  reply  to  Mr.  Squier  was  of  the  same  cast — I  do  not  intend 
to  speak  of  it  as  a  denunciation.  Although  personally  he  knew  Mr. 
Squier,  as  Moderator  he  did  not  know  him  when  he  came  to  demand  a 


MR.  WOOD'S  ARGUMENT.  427 

seat.  How  could  he  say  he  did  not  know  him,  unless  he  was  acting  out 
the  exscinding  resolutions?  He  knew  that  the  Presbytery  from  which 
Mr.  Squier  was  sent  had  once  been  recognised  as  a  part  of  the  Church; 
why  then  did  he  know  it  no  longer?  It  is  plain  I  say,  that  he  meant  to 
act  out  the  measures  of  1837.  If  he  did  add,  "  at  this  time,"  his  only 
meaning  was,  "  They  c^n't  come  into  the  organization;  their  commissions 
cannot  be  laid  upon  the  table,  cannot  be  referred  to  the  Committee  of 
Elections.  They  are  no  part  or  parcel  of  the  Assembly.  We  don't 
know  them."  They  were  to  come  in  only  according  to  the  resolutions 
of  1837,  which  had  been  adopted  by  the  Old-school  convention  in  1838; 
only  by  making  application  in  the  way  already  described. 

But,  gentlemen,  on  what  possible  grounds  could  the  Moderator  refuse 
to  put  Dr.  Mason's  appeal  to  the  house?  According  to  his  own  princi- 
ples the  body  was  then  sufficiently  organized  to  proceed  to  business,  the 
roll  having  been  reported;  for  the  next  step  he  said  was  for  the  house  to 
appoint  a  Committee  of  Elections.  But  the  clerks  had  failed  to  report 
all  the  commissions,  and  the  object  of  the  motion  was  to  make  them  do 
their  duty.  "No,"  says  Dr.  Elliott;  "the  first  act  of  the  Assembly 
must  be  the  appointment  of  a  Committee  of  Elections."  If  Dr.  Mason 
had  suflfered  that  time  to  pass,  and  the  house  to  be  completely  organized, 
he  could  not  have  got  the  commissions  which  he  offered  before  that  com- 
mittee at  all.  Afterwards  the  application  must  have  been  to  the  organiz- 
ed body.  He  could  have  demanded  admission  for  the  excluded  mem- 
bers only  from  the  Assembly  of  1838,  the  Old-school  Assembly.  They 
had  been  before  told  thus  to  apply,  but  they  could  not  agree  to  a  propo- 
sition which  said,  "  You  are  no  part  or  parcel  of  the  Church,  and  have 
nothing  to  do  with  the  organization.  Yon  must  adopt  the  method  point- 
ed out  in  the  resolution:  you  must  come  in  on  your  knees,  after  an  ex- 
amination on  experimental  religion."  If  I  find  any  position  clearly  laid 
down  in  the  Presbyterian  book,  it  is,  that  it  is  the  duty  of  a  Moderator 
always  to  put  an  appeal.  You  will  see  this  regulation  among  the  general 
rules  for  judicatories,  and  in  several  other  places. 

"  If  any  member  consider  himself  as  aggrieved  by  a  decision  of  the 
moderator,  it  shall  be  his  privilege  to  appeal  to  the  judicatory;  and  the 
question  on  such  appeal  shall  be  taken  without  debate." — Jlppend.  to 
Const.  R.  29. 

The  Moderator  must  allow  the  appeal  to  go  to  the  house.  I  don't 
care  whether  these  rules  are  in  force  in  any  Assembl}'  before  it  express- 
ly adopts,  them.  If  they  are,  the  one  which  I  have  read  makes  it  impe- 
rative to  put  an  appeal;  if  they  are  not,  still  it  is  an  inherent  right  of  a 
member  of  any  deliberative  body,  to  have  an  appeal  from  any  decision  of 
the  chair  put  to  the  house.  The  Moderator  was  bound  to  put  the  appeal. 
In  refusing,  he  made  himself  a  supreme  dictator,  a  judge  in  the  last  re- 
sort. I  have  always  understood  the  right  of  appeal  to  be  inherent  in 
every  organized  assembly.  If  I  am  right  in  this  view  of  the  matter,  I 
think  I  have  shown  that  the  Moderator  and  clerks  had  concerted  a  plan 
for  organizing  the  body  to  the  exclusion  of  certain  rightful  members,  of 
forming  an  unlawful  Assembly;  that  the  refusal  of  the  clerks  to  receive 
the  commissions  of  those  members  was  a  direct  violation  of  their  duty; 
that  the  refusal  of  the  Moderator  to  put  an  appeal  was  a  violation  also  of 
his  duty,  as  it  would  have  been  a  violation  of  the  duty  of  any  presiding 


428  PRESBYTERIAN  CHURCH  CASE. 

officer.  You  have  then  the  case  of  a  Moderator  and  two  clerks,  mere 
ministerial  officers,  who  have  refused  to  do  their  duty.  In  the  next  place 
I  will  endeavour  to  show  that  this  refusal  justified  their  removal  from 
office. 

Now,  may  it  please  your  Honour,  I  should  be  glad  of  an  adjournment. 

Court  adjourned. 

MONDAY  MORNING,  March  25th— 10  o'clock. 

I  find,  gentlemen  of  the  jury,  on  looking  again  at  the  exscinding  reso- 
lutions, that  I  have  made  a  slight  mistake  in  regard  to  the  bearing  of  a 
particular  part — that  which  provides  the  mode  in  which  Presbyteries 
may  come  in  again. 

Here  Mr.  Wood  read  the  fourth  reso\\i{\on.—  Vicl.  ante,  p.  46. 

It  would  appear  that  the  design  of  the  resolution  was  this:  that  all  the 
ministers  and  members  of  churches  belonging  to  Presbyteries  within 
the  bounds  of  the  four  Synods,  which  were  not  strictly  Presbyterian 
in  doctrine  and  order,  should  travel  out  of  those  bounds,  apply  to  ad- 
joining Presbyteries,  and  be  admitted  on  examination;  but  that  those 
Presbyteries  which  were  purely  Presbyterian  should  come  before  the 
Assembly  and  apply  there  for  restoration;  and  the  Assembly  was  to 
take  order  thereon.  It  seems  to  be  implied  that  such  Presbyteries 
should  go  directly  to  the  General  Assembly.  But  the  mistake  is  of 
little  importance.  If  they  come  to  the  Assembly,  they  must  first  recog- 
nise the  excision  as  valid:  they  must  apply  as  persons  without,  seeking  to 
be  admitted  into  the  body,  thus  acknowledging  that  they  are  in  the  situa- 
tion of  aliens.  I  do  not  see  how  any  commissioner  could  be  sent  to  the 
next  Assembly  from  these  Presbyteries,  for  in  order  to  appoint  represen- 
tatives they  must  be  connected  with  the  Church.  If  any  should  be  ap- 
pointed, they  must  come,  not  to  claim  seats,  but  to  sue  for  admission. 
What  was  meant  by  a  Presbytery  strictly  Presbyterian  in  doctrine  and 
order?  Look  at  the  views  of  those  who  passed  the  act  of  excision  and 
you  will  discover.  Any  Presbytery  which  had  in  connexion  with  it  a  sin- 
gle Congregational  church,  according  to  the  terms  of  the  alliance  of  1801, 
was  not  considered  strictly  Presbyterian.  Consequently  as  to  the  great 
body  of  the  Presbyteries — the  whole  number,  with  very  few  exceptions — 
this  mode  was  impracticable.  The  great  mass  of  one  or  two  hundred 
thousand  worshippers  exscinded,  would  have  been  obliged  to  travel  two 
or  three  hundred  miles  to  adjoining  Presbyteries,  there  to  undergo 
the  examination  of  which  I  have  before  spoken.  This  manner  of  a 
Presbytery's  coming  in  is  a  complete  anomaly,  a  gross  irregularity:  it 
disarranges  the  whole  Presbyterian  plan  of  government.  The  Assembly 
cut  off"  the  four  Synods — did  not  dissolve  but  destroyed  them,  declaring 
them  no  part  or  parcel  of  the  Church.  What  was  the  consequence? 
Suppose  a  Presbytery,  recognising  the  validity  of  the  exscinding  acts,  had 
sent  up  a  committee  to  the  General  Assembly,  to  apply  for  its  readmis- 
sion,  and  to  show  that  it  was  strictly  Presbyterian  in  doctrine  and 
government.  Suppose  that  this  committee  should  have  demanded  the 
restoration  of  the  Presbytery;  should  have  said,  "  Come,  examine  our 
case,  and  admit  the  body  that  we  represent."  What  spectacle  would 
have  been  presented?     The  entire  prostration  of  the  whole  Presbyterian 


MR.  WOOD'S  ARGUMENT.  429 

system,  for  that  requires  a  regular  gradation  of  authority;  from  the 
General  Assembly  to  the  Synod,  from  the  Synod  to  the  Presbytery,  and 
from  the  Presbytery  to  the  Session.  The  records  of  a  Presbytery  are 
to  be  examined  by  the  Synod,  and  those  of  a  Synod  by  the  General 
Assembly.  If  this  order  is  of  divine  right,  the  course  proposed  would 
be  counter  to  the  law  of  heaven.  I  do  not  go  to  the  length  of  saying 
that  it  is  ef  divine  right.  There  is  nothing  in  the  Confession  of  Faith  re- 
quiring such  a  belief.  But  according  to  constitutional  right,  there  must 
be  a  regular  gradation  of  authority  from  the  General  Assembly  to  the 
Synod,  from  that  to  the  Presbytery,  and  so  on.  If  you  cut  out  the 
Synods,  you  have  nothing  but  Presbyteries  to  come  in;  and  according  to 
the  terms  of  the  resolution,  they  are  to  apply  directly  to  the  General 
Assembly.  It  is  a  great  point  of  the  case,  that  they  are  treated  as  out  of 
the  .Church;  that  they  are  directed,  not  merely  to  send  commissioners, 
but  to  come  praying  for  admission,  and  to  submit  to  examination  in  re- 
gard to  doctrine  and  order;  after  which  the  Assembly  is  to  exercise  its 
own  discretion  about  admitting  them. 

I  undertook  to  show  on  Saturday,  that  the  exscinding  resolutions  were 
void;  that  they  were  not  justifiable  on  any  principles  of  judicial  proceed- 
ing, because  there  was  no  notice,  no  trial  or  hearing;  nor  yet  as  legisla- 
tive acts,  because  such  a  subordinate  institution  cannot  pretend  to  the 
power  to  disfranchise  a  portion  of  its  members  by  mere  legislation. 
Farther,  those  resolutions  were  not  good,  as  partaking  of  the  nature  of 
political  revolution.  The  four  Synods  could  not  be  severed  as  a  nation 
may  sever  a  portion  of  itself.  It  is  idle  to  say  that  the  Assembly  could 
resort  to  such  an  extreme  measure,  when  it  is  governed  by  law  in  the 
exercise  of  its  jurisdiction;  when  it  is  completely  subject  to  the  laws  of 
the  land.  And  I  undertook  to  show,  not  only  that  the  act  of  excision 
was  void,  but  also  that  there  was  a  concerted  plan  formed  to  carry  out 
that  act;  that  the  Old-school  convention  had  passed  a  resolution  ap- 
proving and  adopting  it;  that  the  clerks,  in  furtherance  of  the  same 
scheme,  had  rejected  altogether  the  commissions  from  the  Presbyteries 
belonging  to  the  four  Synods;  that  the  Moderator  was  endeavouring  to 
follow  out  the  plan  of  exclusion;  and  that  the  whole  process  of  organiza- 
tion was  proceeding  on  this  exclusive  principle,  and  was  therefore  defec- 
tive, up  to  the  time  when  Mr.  Cleaveland  rose.  It  yet  remains  to  be 
shown  that  the  Old-school  General  Assembly  itself  did  afterwards  carry 
out  the  doctrine  of  excision  in  their  own  organization.  After  their 
Moderator  had  been  displaced  by  Mr.  Cleaveland's  motion,  and  the  true 
Assembly  had  left  the  church  in  Ranstead  Court,  they  who  remained 
went  on  and  organized  an  Assembly  according  to  their  own  principles, 
shutting  out  all  those  who  came  from  the  infected  district.  Now  this 
body,  in  every  thing  that  it  did  and  did  not  do,  in  1838,  manifested  a 
determined  purpose  to  exclude  the  exscinded  commissioners  from  the 
organization:  this  purpose  appeared  in  all  their  proceedings.  They  com- 
menced in  the  wrong  way,  and  they  ended  as  they  commenced:  so  I 
suppose  they  will  go  on  to  the  end  of  life.  First,  they  did  not  repeal 
the  exscinding  resolutions,  but  declared  them  still  in  force.  Next,  in  the 
statistical  table  appended  to  their  Minutes,  which  contains  a  list  of  the 
Synods  and  Presbyteries,  the  four  Western  Synods  are  omitted,  evident- 
ly being  considered  no  part  or  parcel  of  the  Church.     Again  on  page  34 


430 


PRESBYTERIAN  CHURCH  CASE. 


of  these  Minutes,  you  have  the  views  of  the  Old-school  Assembly  car- 
ried out  to  their  full  extent. 

Mr.  Hubbell.  That  part  of  those  Minutes  is  not  in  evidence.  Mr. 
Meredith  offered  them  for  two  purposes  only — First,  for  the  preliminary 
minute  of  the  organization;  and,  secondly,  for  the  statistical  table. 

Judge  Rogers.  But  if  offered  for  one  purpose  only,  they  are  in  evi- 
dence for  all  purposes. 

Mr.  Hubbell.     This  part  was  never  read  at  all. 

Mr.  fVood.     The  whole  I  thought  was  offered. 

Mr.  Hubbell.  I  asked  Mr.  Meredith  distinctly  for  what  purpose  he 
offered  these  Minutes.  He  replied,  for  two  purposes — those  which  I 
have  mentioned.     We  were  prepared  with  evidence  upon  this  point. 

Judge  Rogers.  What  can  be  th.e  objection  to  his  reading  the  part  to 
which  he  refers? 

Mr.  Hubbell.  Why,  may  it  please  your  Honour,  we  have  had  no 
opportunity  to  explain  it,  or  to  give  counter  testimony.  It  is  an  entirely 
new  matter. 

Judge  Rogers.     Mr.  Wood,  you  may  go  on. 

Mr.  Hubbell.     Will  your  Honour  please  to  note  an  exception? 

Mr.  Wood.  The  Old-school  Assembly  of  1838,  for  the  purpose  of 
carrying  out  the  measures  of  1837,  passed  three  acts.  It  is  from  the  first 
of  these  that  I  read. 

"  Section  2.  In  case  the  majority  of  any  Presbytery,  whose  Com- 
missioners have  acted  as  aforesaid,  shall  take  proper  order  touching  their 
conduct  in  the  premises,  and  are  willing,  upon  the  basis  of  the  Assem- 
blies of  1837  and  1838,  to  adhere  to  the  Presbyterian  Church  in  the 
United  States,  then  and  in  that  case  the  act  of  their  said  Commissioners, 
in  advising,  creating,  or  uniting  with  said  Secession,  or  in  refusing  to 
attend  on  this  Assembly,  as  the  case  may  be,  shall  not  prejudice  the 
rights  or  interests,  or  affect  the  integrity  of  said  Presbytery,  or  its  union 
with  the  Presbyterian  Church  in  the  United  States  of  America,  as  an 
integral  portion  thereof. 

"  Section  3.  In  case  the  majority  of  any  Presbytery  shall  refuse  or 
neglect  to  take  the  proper  order  in  regard  to  its  seceding  Commissioners, 
or  shall  approve  their  conduct,  or  adhere  to  the  new  sect  they  have 
created,  or  shall  decline  or  fail  to  adhere  to  the  Presbyterian  Church  in 
the  United  States  of  America,  upon  the  said  basis  of  1837  and  1838,  for 
the  reform  of  the  Church,  then  and  in  that  case  the  minority  of  said 
Presbytery  shall  be  held  and  considered  to  be  the  true  Presbytery,  and 
shall  continue  the  succession  of  the  Presbytery  by  its  name  and  style, 
and  from  the  rendition  of  the  erroneous  and  schismatical  decision,  which 
is  the  test  in  the  case,  be  the  Presbytery;  and  if  sufficiently  numerous  to 
perform  Presbyterial  acts,  shall  go  forward  with  all  the  proper  acts  and 
functions  of  the  Presbytery." 

Now  then  you  see,  that  the  Old-school,  not  only  in  the  organization  of 
the  Assembly,  so  far  as  it  had  gone  when  those  who  had  first  organized 
themselves  left  the  house,  but  also  in  the  organization  which  they  after- 
wards effected,  in  the  form  which  they  considered  the  true  one,  when 
the  others  had  retired,  were  carrying  out  the  principles  of  1837,  i-egard- 
ing  them  as  the  right  basis  of  organization,  and  declaring  that  the  minori- 
ty in  every  subordinate  judicatory  of  the  Church,  which  adhered  to  the 


MR.  WOOD'S  ARGUMENT.  43  j 

Assembly  formed  on  that  basis,  where  the  majority  acted  differently,  ad- 
hering to  the  Assembly  constituted  on  the  principle  of  admitting  all  the 
members  to  their  seats — that  such  minority  should  be  considered  the 
rightful  successor  of  the  judicatory.  On  what  principle  then  could 
the  Old-school  invite  these  commissioners  to  wait  until  the  organization 
had  been  perfected,  and  then  apply  to  the  Assembly  for  relief?  Is  it  not 
manifest  that  they  were  acting  out  the  exscinding  resolutions?  They 
declare  that  they  are  the  true  basis  of  the  Church,  and  provide  that  any 
minority  who  adhere  to  the  Church  as  founded  on  that  basis  shall  be 
considered  as  the  true  branch  of  the  Assembly;  and  the  same  doctrine  is 
carried  out  in  the  statistical  table,  to  the  very  end  of  the  Minutes. 

On  what  principle  then,  are  we  told,  that  those  who  have  been  ex- 
cluded will  be  received,  whenever  they  choose  to  come  back?  The  fat- 
ted calf  might  indeed  be  killed,  but  they  alone,  who  having  cut  off  their 
brethren,  have  persisted  in  the  attempt  to  keep  them  out,  would  feed 
on  the  banquet.  What  parallel  is  there  between  the  picture  presented  in 
that  beautiful  passage,  to  which  the  learned  gentleman  has  referred — the 
picture  of  the  most  touching  parental  solicitude,  and  of  filial  affection, 
warming  the  heart  of  the  prodigal,  even  in  all  his  devious  wanderings — 
what  parallel  between  that  picture  and  the  scenes  of  1837 — brethren  turn- 
ed out  of  doors,  without  a  hearing;  without  notice  of  any  complaint. 
The  gentlemen  on  the  other  side  had  better  take,  as  the  polar  star  of  their 
course,  the  land  of  Kosciusko,  dismembered  by  ruthless  despots,  and  its 
inhabitants  driven  out  from  the  homes  of  their  ancestors. 

Having  made  good  my  position  as  to  this  part  of  the  case,  I  now  pro- 
ceed to  the  consideration  of  certain  other  cjuestions  relating  to  the  organi- 
zation of  1838,  which  has  thus  been  brought  down  to  the  time  of  Mr. 
Cleaveland's  motion.  My  first  remark  is,  that  the  gentlemen  on  the 
other  side  are  entirely  wrong,  in  speaking  of  ours  as  a  new  organization. 
It  is  not  true  that  it  was  so.  All  that  we  did  was,  to  continue  that  already 
commenced:  which,  however,  was  proceeding  irregularly  in  the  course 
marked  out  for  it  by  the  Moderator  and  clerks.  In  any  body,  whether 
in  the  process  of  organization,  or  completely  organized,  if  the  Moderator 
or  clerks  refuse  to  do  their  duty,  they  may  be  displaced,  and  new  ones 
put  in  their  stead,  and  yet  no  new  organization  be  effected.  Other  offi- 
cers being  substituted  for  them,  every  thing  goes  on  in  regular  course: 
the  proceedings  are  merely  continued  from  the  point  where  they  were 
interrupted  or  broken  ofi".  Suppose  a  clerk,  a  Moderator,  or  a  Chairman 
be  taken  suddenly  sick,  and  a  new  one  be  appointed  in  his  place:  is  such 
appointment  a  new  organization  of  the  body?  No;  the  subsequent  acts 
are  engrafted  on  the  original  proceedings.  The  old  body  is  not  dismem- 
bered by  a  mere  change  of  a  ministerial  officer.  It  is  perfectly  imma- 
terial, as  to  the  efiect,  whether  the  removal  and  substitution  are  occasioned 
by  misdemeanor  in  office,  or  by  disability,  arising  from  sickness.  In 
either  case,  the  subsequent  proceedings  are  a  mere  continuation  of  the 
business:  the  officers  having  been  changed,  the  regular  business  goes  on. 
One  of  the  learned  gentlemen  told  you,  that  though  he  had  knocked  down 
Mr.  Cleaveland,  he  would  yet  give  him  a  few  more  blows.  This  was 
certainly  very  ungallant  conduct  towards  a  prostrate  foe,  in  a  gentleman 
of  his  lofty  and  noble  bearing.  But  I  will  endeavour  to  vindicate  his 
character  from  the  aspersions  which  he  himself  has  tried  to  cast  upon  it, 


^32  PRESBYTERIAN  CHURCH  CASE. 

by  showing  that  he  did  not  strike  Mr.  Cleaveland,  after  knocking  him 
down,  because  he  has  not  yet  knocked  him  down:  Mr.  Cleaveland  still 
remains  upon  his  legs.  Under  the  next  head,  I  shall  inquire,  first,  whether 
a  refusal  of  an  officer  of  the  Assembly  to  perform  his  duty,  or  misconduct 
tantamount  to  such  a  refusal,  will  justify  the  body  in  removing  him,  and 
substituting  another  in  his  place;  and,  secondly,  whether  the  refusal  of  the 
clerks  to  enroll  the  exscinded  commissioners,  and  of  Dr.  Elliott  to  put  an 
appeal,  was  a  refusal  to  do  their  duty,  or  was  tantamount  thereto.  The 
affirmative  of  both  these  propositions,  I  shall  endeavour  to  establish. 

First,  as  to  the  power  of  the  body  to  remove  an  officer.  Why,  gen- 
tlemen, this  is  a  power  so  essentially  inherent  in  every  body,  that  one 
would  think  there  could  be  no  dispute  about  it.  If  an  officer  of  any  de- 
liberative assembly,  refuses  to  do  his  duty,  as  for  example,  if  clerks  re- 
fuse to  observe  the  rule  which  makes  it  their  duty  to  put  all  regular  com- 
missions presented  on  the  roll;  and  if  the  Moderator,  when  the  com- 
missioners thus  rejected  are  attempting  to  get  their  places,  to  have  the 
error  of  the  clerks  rectified,  and  for  this  purpose  make  a  motion,  refuses 
to  put  that  motion,  and  an  appeal  being  taken  from  his  decision,  refuses 
also  to  put  the  appeal,  what  is  to  be  done?  You  must  either  allow  these 
officers  to  turn  dictators,  or  you  must  say  that  there  is  in  the  body  an  in- 
herent right  to  displace  them.  But  we  find  the  law  on  this  point  so 
clearly  laid  down,  that  there  can  be  no  doubt  respecting  it.  In  Jeffer- 
son's Manual  it  is  expressly  declared,  that  the  Speaker  of  the  House  of  Re- 
presentatives, and  the  Speaker  of  the  British  House  of  Commons,  though 
they  are  essential  officers,  though  nothing  can  be  done  without  them,  may 
be  displaced  for  a  refusal  to  perform  their  duty.  The  same  principle  is 
found  in  Jingell  and  J3mes,  247. 

"  A  distinction  is  made  between  such  persons  as  hold  a  ministerial 
office,  and  such  as  hold  an  office  of  the  essence  of  the  corporation.  A 
mere  ministerial  officer,  appointed  durante  bene placito,  may  be  remov- 
ed without  any  other  cause,  than  that  the  pleasure  of  those  who  appointed 
him,  is  determined;  and  a  formal  amotion  for  the  appointment  of  another 
to  the  office  is  sufficient,  without  resorting  to  notice.  In  these  cases, 
says  Mr.  Wilcock,  the  right  to  amove  is,  of  course,  incidental  to  the 
right  of  appointment.  And  a  ministerial  officer  may  be  so  amoved,  when 
appointed  durante  bene  placito,  where  the  power  of  appointment  is 
'  for  life,'  or  '  during  pleasure.'  Of  this  class  is  a  town  clerk  or  recorder; 
that  is,  it  seems,  where  the  recorder  is  a  mere  counsel  to  advise,  and  not 
one  who  has  a  corporate  office  and  voice  in  the  common  council.  But 
there  cannot  be  a  custom  to  amove  at  pleasure  from  an  office  of  the  es- 
sence of  the  corporation;  such  for  example  as  an  alderman;  for  he  has  a 
franchise  in  his  office." 

The  author  then  goes  on  to  state  the  grounds  on  which  a  person  who 
has  a  franchise  in  his  office  may  be  amoved,  and  the  proper  manner  of 
removal.     Then  on  page  252  he  remarks, 

"  An  amotion  from  one  office  does  not  of  course  the  least  impair  the 
title  of  the  person  amoved  to  another  office;  and  much  less  is  it  a  disfran- 
chisement from  his  right  as  a  mere  member  of  the  corporation." 

You  observe  that  there  are  some  officers  who  are  of  the  essence  of  the 
corporation;  as  in  a  municipal  corporation,  like  that  of  Philadelphia,  the 
mayor  and  recorder.     Such  an  officer  has  a  franchise  in  his  office,  and 


MR.  WOOD'S  ARGUxMENT.  433 

cannot  be  removed  by  the  body,  unless  for  sufficient  cause  shown,  and  in 
the  manner  pointed  out  by  their  charter.  But  a  mere  ministerial  officer 
may  be  removed  at  any  time:  if  he  holds  merely  during  pleasure,  this  is 
unquestionable.  Now,  hj  the  Constitution,  the  old  Moderator  is  to  con- 
tinue in  office  only  until  a  new  one  is  appointed,  which  regulation  shows 
clearly,  that  the  Assembly  may  appoint  another.  In  the  case  before 
cited.  Field  v.  Field,  9  IVendell,  402,  it  is  decided  that  such  an  officer 
may  be  amoved,  if  he  does  not  perform  his  duty.  The  court  say  that 
the  majority  of  the  assembly,  instead  of  keeping  the  minority  out  of  the 
house,  because  the  presiding  officer  had  violated  his  duty,  ought  to  have 
amoved  that  officer;  thus  clearly  showing  that  they  had  the  power  of 
amotion. 

Now,  in  the  next  place — and  no  doubt  all  that  I  have  said  on  the  first 
point  has  been  a  mere  waste  of  time — was  there  sufficient  cause  for  our 
removing  the  officers  of  the  General  Assembly,  in  1838?  Here  I  take 
for  granted  that  for  good  cause  they  might  be  removed,  and  ask  merely, 
had  we  good  cause  for  our  proceedings?  This  was  not  a  case  of  petty 
irregularity,  of  a  sudden  sally  of  bad  temper,  of  temporary  excitement 
producing  a  moment's  excess.  There  was  a  deep,  settled,  and  deadly 
purpose  to  do  wrong.  None  of  you  have  ever  before  heard  of  such  an 
instance.  The  report  of  this  trial  must  hereafter  always  be  looked  to  as 
a  leading  case.  You  have  here  the  workings  of  a  grand  machine — a  new 
infernal  machine,  or  a  species  of  guillotine,  for  cutting  off  at  a  single  fall 
of  the  hatchet,  two  hundred  thousand  souls,  without  any  notice  or  warn- 
ing. It  is  an  entirely  isolated  case,  wrapped  up  in  its  own  gloomy  gran- 
deur. I  challenge  any  man  to  produce  another  instance  of  the  kind  from 
the  whole  history,  civil  and  ecclesiastical,  of  this  country.  There  is 
none  like  it.  It  should  be  a  matter  of  pride  and  pleasure  to  us  all  as 
Americans,  that  in  this  land  no  such  attempt  has  ever  before  been  made. 
It  was  to  redress  wrongs  of  the  character  which  I  have  described,  that 
these  officers  were  removed.  They  were  determined  to  carry  out  the 
plan  which  had  been  concerted  in  direct  violation  of  their  plain  duty. 
The  Moderator  refused  even  to  put  an  appeal:  if  he  had  put  this,  the 
decision  would  have  been  a  direct  test  of  the  strength  of  the  boasted  Old- 
school  majority.  How  do  our  opponents  attempt  to  justify  the  proceed- 
ings of  the  Moderator?  They  say  that  he  could  not  be  removed,  because 
there  was  no  house  to  remove  him;  that  at  the  time  of  Mr.  Cleaveland's 
motion,  the  Moderator  and  clerks  were  every  thing;  that  they  were  as  yet 
the  sole  powers  in  the  Assembly,  which  only  after  its  complete  organiza- 
tion was  in  a  condition  to  act.  Is  this  the  doctrine  of  any  organized  body? 
I  ask  you  as  men  of  common  sense,  and  I  may  add,  as  men  of  business, 
for  you  have  each,  no  doubt,  contributed  to  the  organization  of  some 
sort  of  deliberative  body,  how  is  an  Assembly  newly  convened  con- 
stituted? Is  it  not  by  the  members  coming  together  by  mutual  consent 
and  exhibiting  to  one  another  their  vouchers  of  membership?  At  this 
stage  of  the  business,  the  body  is  not  organized,  but  is  in  the  process  of 
organization.  Such  is  precisely  the  case  with  the  General  Assembly. 
Is  it  said  that  the  body  is  not  in  existence  until  after  a  Committee  of 
Elections  has  been  appointed?  As  soon  as  the  constituting  prayer  has 
been  offered,  its  existence  commences.  Ransack  the  whole  of  the  Minutes 
and  you  will  find  that  the  Assembly  is  always  constituted  by  prayer. 

55 


434  PRESBYTERIAN  CHURCH  CASE. 

Who  appoints  the  Committee  of  Commissions?  At  first,  the  house  itself; 
but  latterly  the  old  clerks  have  formed  a  standing  committee.  To  whom 
do  these  clerks,  or  this  committee  report,  if  there  is  no  house  in  exist- 
ence, at  the  time  of  making  their  report?  How  can  a  committee  report 
when  there  is  no  house  to  report  to?  The  very  idea  of  a  report  in  such 
a  case  involves  an  absurdity.  If  the  commissioners  were  a  parcel  of 
sheep  congregated  together,  they  would  need  a  herdsman;  but  I  appre- 
hend that  only  rational  men  are  sent  to  the  Assembly,  and  that  they 
require  no  clerk  or  Moderator  to  act  in  a  herdsman's  capacity.  They 
may  always  come  together,  and  mutually  exhibit  their  vouchers.  They 
are  then  the  Assembl}?^  in  its  incipient  state,  and-have  power  to  appoint  a 
Moderator  or  chairman,  and  clerks,  in  order  that  those  officers  may 
make  out  the  roll.  Suppose  that  in  a  parcticular  case  there  should  be  no 
Moderator  in  attendance,  and  that  the  clerk  too  was  absent  or  sick. 
What  could  be  done?  Why,  according  to  the  doctrine  of  our  opponents, 
the  General  Assembly  would  in  that  case  be  the  poorest,  most  wretched 
and  miserable  body  in  existence.  The  commissioners,  having  no 
Moderator  or  clerk  to  assist  them  in  their  organization,  would  have  to 
pocket  their  commissions  and  go  home.  To  plain,  practical  m.en,  of  com- 
mon sense,  there  would  be  no  difficulty  at  all;  but  to  theological  meta- 
physicians, a  Moderator  and  clerk  would  be  absolutely  necessary:  they 
could  never  organize  themselves  without  them. 

Suppose  another  case — that  the  two  clerks  should  positively  refuse  to 
perform  the  necessary  duties  of  the  organization;  that  they  should  re- 
fuse to  put  down  the  names  of  any  commissioners,  or  should  make  a  roll 
of  only  ten — not  enough  to  form  a  quorum:  what  could  be  done  then. 
Is  the  power  of  the  clerks  to  be  absolute?  No  house  is  in  existence,  to 
perform  any  act,  until  a  Committee  of  Elections  has  been  appointed,  say 
the  gentlemen  on  the  other  side.  But  what  if  the  old  clerks  refuse  to 
assist  in  forming  any  house,  and  pocket  all  the  commissions  which  have 
been  presented?  Any  body  of  men  could  organize  themselves,  under 
such  circumstances,  without  difficulty.  They  know  one  another,  and 
that  is  enough  for  the  incipient  stage  of  the  organization,  enough  to  em- 
power them  to  choose  a  chairman.  Any  member  rises,  and  moves  that 
A  take  the  chaii-,  and  that  B  and  C  be  clerks.  The  gentlemen  appointed 
on  such  motion  take  their  seats.  Then  the  clerks  as  a  Committee  of 
Commissions  can  examine  those  presented,  and  receiving  all  that  are 
regular  for  enrolment,  lay  aside  the  irregular  and  informal  commis- 
sions for  after  consideration.  The  only  difference  between  this  method 
of  proceeding  and  that  usual  in  the  Assembly,  is  that  here,  to  prevent 
difficulty,  the  old  Moderator,  and  according  to  a  recent  rule,  the  old  clerks, 
are  continued  in  office  to  assist  in  the  organization;  the  Moderator, 
according  to  the  express  words  of  the  provision,  only  until  a  new  one  is 
chosen.  If  these  officers  are  not  in  attendance,  the  common  sense  of 
every  man  tells  him  that  others  must  be  appointed  by  the  commissioners 
present.  Thus  thousands  of  deliberative  bodies  in  our  own  country  are 
organized.  There  is  no  country  in  the  world  where  the  organization  of 
societies  for  the  various  purposes  of  business,  amusement,  and  instruction, 
is  so  common.  There  can  be  no  difficulty  about  organizing  such  a  body 
as  the  General  Assembly.  In  this  case,  it  is  true,  the  old  Moderator 
attended  and  entered  upon  the  duties  of  his  office;  but  it  is  equally  true, 


MK.  WOOD'S  ARGUMENT.  435 

that  he  refused  to  perform  those  duties,  or  did  acts  tantamount  to  a  posi- 
tive refusal.  The  emergency  was  in  every  respect  equal  to  that  happen- 
ing in  the  case  of  his  sudden  sickness. 

It  was  the  duty  of  the  clerks,  according  to  the  rules  of  1826,  {ante,  p, 
156,)  to  put  on  the  roll  the  names  of  all  who  presented  regular  commis- 
sions. This  they  were  bound  to  do,  yet  certain  regular  commissions 
they  refused  to  receive.  Then  the  Moderator  violated  his  duty  also. 
When  the  clerks  refused  to  put  the  names  of  the  exscinded  members  on 
the  roll,  that  was  a  breach  of  their  part  of  the  duty  of  organization. 
There  was  a  defect  in  the  proceedings  according  to  both  their  own  rules, 
and  the  general  principles  of  law,  which  establish  beyond  a  doubt,  the 
position,  that  no  assembly  can  be  lawfully  constituted  without  allowing 
all  entitled  to  seats  to  participate.  An  effort  was  made  to  compel  a  com- 
pliance with  this  rule,  but  the  Moderator  refused  to  put  a  motion  for  that 
purpose;  and  likewise,  when  his  decision  was  appealed  from,  refused  to 
let  the  appeal  go  before  the  house;  being  fully  determined  to  act  as  a  dic- 
tator in  the  organization;  and  to  carry  out  to  their  consummation  the 
void  measures  of  1837,  in  desperate  defiance  of  the  house,  which  had  an 
undoubted  right  to  organize  itself,  or  to  compel  a  lawful  organization. 

I  say  then,  that  all  these  officers  had  refused  to  perform  their  respec- 
tive parts  of  the  duty  imposed  upon  them.  But  they  had  done  some- 
thing more.  Here  was  a  concert,  a  collusion,  a  contrivance  to  effect  an 
illegal  organization  of  the  Assembly.  We  have  already  seen  the  Old- 
school  acting  out  the  resolutions  of  the  Assembly  of  1837,  the  clerks 
pledged  to  pursue  the  same  course,  and  both  clerks  and  Moderator  in 
1838,  attempted  to  organize  the  Assembly  on  the  basis  of  these  resolu- 
tions. Here  then  I  say  was  a  concert,  a  collusion,  between  the  Modera- 
tor, the  clerks,  and  a  portion  of  the  commissioners,  to  constitute  an 
unlawful  Assembly.  What  was  this  but  fraud — a  conspiracy,  supposing, 
as  I  have  shown,  that  they  had  no  right  to  shut  out  these  members? 
On  any  just  principles  of  law,  fraud  annuls  every  thing  that  it  touches. 
Here  it  was  tantamount  to  a  refusal  to  perform  prescribed  duties,  and  the 
Assembly  was  crumbling  under  its  influence.  In  speaking  thus,  I  do  not 
intend  to  impeach  any  body's  motives.  These  gentlemen  were  labouring 
under  strong  excitement,  or  they  never  could  have  brought  themselves 
thus  to  cut  off  their  brethren  by  thousands  and  tens  of  thousands.  But 
if  their  measures  were  unlawful  and  unconstitutional;  if  they  deprived 
multitudes  of  all  those  rights  secured  to  them  under  the  charter;  and  if 
these  measures  were  the  result  of  a  concert  to  carry  out  acts  that  were 
unconstitutional  and  void;  in  law  they  were  guilty  of  gross  fraud,  no 
matter  whether  they  acted  conscientiously  or  not.  Suppose  a  man  em- 
barrassed in  his  circumstances,  in  order  to  secure  the  means  for  future 
exertion,  whereby  he  may  finally  clear  ofi'his  debts,  or  for  the  support  of 
his  family,  transfers  a  portion  of  his  property  to  a  friend,  to  be  held  for 
his  use.  The  transfer  is  wrongful,  illegal,  and  void.  The  law  will  treat 
it  as  a  fraud,  however  conscientious  the  man  may  have  been.  If  I  am 
right  in  this,  then  the  concert  which  I  have  shown  to  have  existed,  was, 
in  the  eye  of  the  law,  a  fraudulent  conspiracy,  not  only  to  destroy  the 
rights  of  certain  portions  of  the  Church,  but  to  perpetuate  their  destruc- 
tion;  to   prevent  those  who  had  been  exscinded  from  ever  getting  in 


436  PRESBYTERIAN  CHURCH  CASE. 

again,  unless  according  to  certain  prescribed  principles  of  admission, 
which  involved  an  acknowledgment  that  they  had  been  fairly  excluded. 

The  next  objection  made  to  the  validity  of  our  organization  is,  that 
when  Mr.  Cleaveland  rose  to  speak,  he  was  called  to  order  by  the  Mode- 
rator. That  call,  it  is  alleged,  ought  to  have  stayed  for  the  time  all  far- 
ther proceedings.  I  can  understand,  that  when  a  speaker  is  addressing 
a  body  regularly  constituted,  and  engaged  in  the  regular  transaction  of  its 
business,  if  he  is  called  to  order  by  the  Moderator,  it  is  proper  that  he 
should  stop,  until  the  question  of  order  has  been  settled.  But  here  was 
a  very  different  case.  Here  the  presiding  officer  had  refused  to  do  his 
duty,  and  this  warranted  his  being  displaced.  A  member  rises  and  makes 
a  motion  for  his  removal.  Now,  on  what  principle  can  it  be  contended 
that  when  he  tries  to  make  this  motion,  the  Moderator  may  interrupt 
him  by  rapping  with  his  hammer  and  calls  to  order?  If  Dr.  Elliott  had 
the  power  thus  to  stop  Mr.  Cleaveland,  the  organization  could  not  have 
proceeded  one  inch  without  his  permission:  he  became  at  once  a  complete 
dictator.  By  such  an  extraordinary  application  of  a.  rule  of  order,  he 
would  have  iDeen  secure  in  his  place,  no  matter  how  grossly  he  had  vio- 
lated every  law.  Then  a  mere  chairman  of  an  assembly  may  refuse  to  put 
a  question,  may  refuse  to  put  an  aj)peal,  and  though  it  is  perfectly  plain, 
that  he  is  attempting  to  carry  out  mere  party  views,  may  proceed  in  de- 
fiance of  the  house,  and  organize  it  in  an  unlawful  way.  For  if  any  one 
rises  and  moves  that  he  be  displaced,  all  that  he  has  to  do  to  put  down 
the  speaker,  is  to  hammer,  to  pound  away  upon  his  desk:  the  latter  must 
instantly  stop.  What  would  be  the  consequence  of  this?  Why  the  Mo- 
derator would  retain  his  seat  as  long  as  he  felt  disposed.  But  another 
answer  to  the  objection  is,  that  the  question  raised  by  Mr.  Cleaveland's 
application  to  displace  the  Moderator,  was,  from  the  very  nature  of  the 
case,  a  privileged  question,  one  which  interrupted  the  ordinary  routine  of 
business. 

The  learned  gentlemen  tell  us,  that  the  rules  of  1826  prescribe  the 
course  of  proceeding  which  should  have  been  pursued  in  this  case. 

"The  committee  of  commissions  shall,  in  the  afternoon,  report  the 
names  of  all  whose  commissions  shall  appear  to  be  regular  and  constitu- 
tional, and  the  persons  whose  names  shall  be  thus  reported,  shall  imme- 
diately take  their  seats  and  proceed  to  business. 

"The  first  act  of  the  Assembly  when  thus  ready  for  business,  shall  be 
the  appointment  of  a  Commitlee  of  Elections,  whose  duty  it  shall  be  to 
examine  all  informal  and  unconstitutional  commissions,  and  report  on  the 
same  as  soon  as  practicable." — Vid.  ante,  p.  156. 

Now,  according  to  this  course  of  proceeding,  it  is  manifest,  that  you 
must  first  have  before  the  house  a  full  report  of  all  the  commissioners  who 
present  formal  and  constitutional  commissions,  and  that  when  the  names 
of  all  these  are  on  the  roll,  then  if  there  be  any  informal  commissions  a 
Committee  of  Elections  must  be  appointed,  to  whom  the  latter  may  be  re- 
ferred. That  is  the  course  which  the  rule  prescribes.  Had  such  been 
the  course  here?  Did  the  rules  which  I  have  read  justify  the  Modera- 
tor's proceeding,  when  the  object  of  Dr.  Mason's  motion  was  to  secure 
a  place  on  the  roll  for  every  commissioner  who  had  a  regular  and  consti- 
tutional commission?     We  answer  that  the  names  of  all  whose  commis- 


MR.  WOOD'S  ARGUMENT.  437 

sions  were  regular  and  constitutional  were  not  yet  upon  the  roll;  that 
the  clerks  had  refused  to  insert  a  number  of  such  names;  and  that  there- 
fore according  to  their  own  showing,  the  next  business  in  order  was  not 
the  appointment  of  a  Committee  of  Elections:  that  was  to  be  done  after 
all  the  names  of  thjose  whose  commissions  were  regular  and  constitutional 
had  been  enrolled.  If  it  be  true  that  more  than  fifty  such  commissioners 
had  not  yet  been  enrolled,  it  follows,  I  say,  that  the  next  business  was 
not  the  appointment  of  a  Committee  of  Elections;  that  the  next  business 
was,  from  the  necessity  of  the  case,  the  completion  of  the  roll,  which  the 
clerks  had  refused  to  perfect;  the  putting  upon  it  the  names  of  all  whose 
commissions  were  formal  and  regular,  as  the  rules  imperatively  require. 
The  efforts  then  made  by  Mr.  Squier,  Dr.  Mason,  and  Dr.  Patton,  were 
all  efforts  to  complete  a  roll,  which  the  very  rules  quoted  on  the  other 
side  .required  to  be  complete,  before  a  Committee  of  Elections  was 
chosen. 

The  gentlemen  of  the  opposite  party  tell  us,  that  previously  to  Mr. 
Cleaveland's  rising,  another  motion  had  been  made,  which  had  a  prior 
right.  I  believe  that  there  is  a  slight  mistake  here.  That  motion  was 
not  made  previously  to  his  rising,  but  during  the  course  of  his  proceed- 
ings. For  proof  of  this,  I  take  their  own  minute  of  the  transaction,  as 
verified  by  Dr.  Elliott,  one  of  the  committee  who  drew  it  up.  "  Mr. 
Cleaveland,"  says  that  minute,  "then  rose  and  began  to  read  a  paper, 
the  purport  of  which  was  not  heard,  when  the  Moderator  called  him  to 
order.  Mr.  Cleaveland,  however,  notwithstanding  the  call  to  order  was 
repeated  by  the  Moderator,  persisted  in  the  reading.  During  which,  the 
Rev.  Joshua  Moore,  from  the  Presbytery  of  Huntingdon,  presented  a 
commission,  which  being  examined  by  the  Committee  of  Commissions, 
Mr.  Moore  vv^as  enrolled,  and  took  his  seat. 

"  It  was  then  moved  to  appoint  a  Committee  of  Elections,  to  which 
the  informal  commissions  might  be  referred.  But  the  reading  by  Mr. 
Cleaveland  still  continuing,  and  the  Moderator  having  in  vain  called  to 
order,  took  his  seat,  &c." — Vid.  ante,  p.  220. 

You  observe,  then,  that  the  motion  for  the  appointment  of  a  Commit- 
tee of  Elections  was  made  after  Mr.  Cleaveland  had  commenced  his  re- 
marks. And  the  object  of  it  was  simply  to  appoint  a  committee,  to  whom 
might  be  referred  half-a-dozen  informal  commissions,  according  to  the 
rule  of  1826.  But  how  stood  the  case  before?  Why  here  were  sixty 
commissioners  who  had  not  been  enrolled,  though  it  was  the  duty  of  the 
clerks  to  put  them  on  the  roll.  The  Committee  of  Commissions  had  not 
before  put  on  the  roll,  the  names  of  all  whose  commissions  were  regular 
and  constitutional;  and  Dr.  Mason  rises,  to  have  those  whom  they  had 
rejected,  enrolled.  The  Moderator  refuses  to  receive  his  motion,  and 
also  refuses  to  put  an  appeal  which  Dr.  Mason  takes  from  his  decision. 
Then,  after  this  refusal,  Mr.  Cleaveland  rises  and  makes  a  motion  to  ap- 
point a  new  Moderator.  How  then  can  it  be  said,  that  another  motion 
was  previously  pending?  And,  if  it  had  been  pending,  what  of  that? 
Why,  according  to  this  doctrine,  the  principles  of  parliamentary  order 
were  to  prevent  entirely  the  grossest  errors  on  the  part  of  the  clerks  from 
being  corrected.  They  and  the  Moderator,  effectually  sheltered  from 
punishment  by  rules  of  order,  must  have  been  allowed  to  do  just  as  they 
pleased.     They  might  have  shut  out  any  commissioner  whom  they  did 


438 


PRESBYTERIAN  CHURCH  CASE. 


not  like,  and  it  would  have  been  impossible  to  rectify  the  error.  A  routine 
of  business  is  fixed:  this  must  come  first,  and  this  next,  and  this  next;  and 
though  the  officers  are  not  organizing  the  Assembly  on  its  regular  basis, 
though  they  have  excluded  the  riames  of  half  the  commissioners  from  the 
roll,  it  is  not  in  the  power  of  the  house  to  set  them  right,  or  punish  the 
misdemeanor!  If  this  be  true,  then  were  the  acts  of  1837  fastened  upon 
us  completely:  no  commissioner  from  the  exscinded  district  could  hope 
for  restoration. 

I  must  request  your  particular  attention  to  the  various  positions  taken 
in  regard  to  the  remarks  and  motion  of  Mr.  Cleaveland,  which  I  shall 
examine  as  briefly  as  I  can,  endeavouring  to  point  out  the  errors  into 
which  the  opposite  counsel  have  fallen.  One  object  of  this  motion  of 
Mr.  Cleaveland — his  chief  design  in  making  it,  was,  to  have  a  portion  of 
the  house  admitted  to  participate  in  its  acts  and  deliberations,  whom  the 
Old-school  portion  meant  to  exclude  entirely.  I  refer  you  to  the  lan- 
guage of  Mr.  Cleaveland.  He  said,  that  as  the  clerks  and  Moderator 
had  refused  to  do  their  duty,  as  a  large  number  of  commissioners 
had  been  excluded  from  their  seats,  as  they  had  been  advised  by  counsel 
learned  in  the  law,  that  that  was  the  proper  time  and  place  to  effect  a  con- 
stitutional organization,  he  hoped  it  would  not  be  considered  discourteous, 
if  they  should  proceed  to  organize  the  Assembl}^,  which  they  would  do 
with  as  little  delay  as  possible.  In  the  first  place  it  is  objected  that  he 
uses  the  word  loe,  by  which  he  manifestly  means  the  New-school,  and 
not  the  General  Assembly  at  large.  "  We  had  been  advised  by  coun- 
sel"— "if  lue  now  proceed  to  organize,  &c."  If  there  be  any  position 
which  the  whole  evidence  places  beyond  a  doubt,  it  is,  that  the  great  de- 
sign of  those  whom  I  represent  was  to  secure  a  general,  full  and  entire 
organization  of  the  body,  which  should  embrace  every  commissioner 
from  all  the  Presbyteries  connected  with  the  Assembly,  at  the  com- 
mencement of  its  sessions  in  1837,  which  object  had  been  but  partially 
accomplished.  The  object  I  say  of  Mr.  Cleaveland's  motion  was  to 
effect  an  organization  which  should  embrace  the  whole.  Look  at  the 
negociations  that  took  place  between  the  two  conventions  prior  to  the 
meeting  of  the  Assembly:  see  the  New-school  plainly  stating  their  pur- 
pose to  be,  to  secure  the  admission  of  all  the  members.  The  reply  to 
their  proposition  is,  that  the  opposite  side  can  recognise  no  principle  of 
organization,  but  that  having  for  its  basis  the  exscinding  acts  of  1837. 
But  say  the  learned  counsel,  that  we  speaks  volumes.  It  occurs  in  the 
Pastoral  Letter  which  has  been  read  in  evidence.  But  in  what  sense? 
Are  they  not  speaking  in  that  pastoral  letter  as  the  General  Assembly; 
as  a  bodv  embracing  every  part  and  parcel  of  the  Church?  Their  or- 
ganization included  all,  both  Old-school  and  New,  without  any  distinc- 
tion. They  knew  no  party;  they  sought  to  preserve  the  unity  of  the 
entire  Church;  their  object  was  to  break  down  an  exclusive  organization, 
which  had  been  attempted,  and  was  in  progress.  When  they  use  the 
word  we,  they  mean,  we,  the  General  Assembly,  as  opposed  to  a  part,  or 
clique  of  the  body,  which  had  endeavoured  to  cutoff  a  large  limb,  which 
they  chose  to  say  they  did  not  consider  a  portion  of  it.  But,  in  the  con- 
vention, the  New-school  used  the  word  we.  Do  they  consider  the  mem- 
bers of  that  convention  to  have  intended  the  exclusion  of  any  portion  of 
the  Church?     The  gentlemen  on  the  other  side  were  told  over  and  over 


MR.  WOOD'S  ARGUMENT.  439 

again,  that  we  wished  the  entire  Church  to  be  brought  in;  that  there 
should  not  be  a  partial  organization,  but  a  complete  one,  embracing  all 
the  commissioners;  that  we  were  opposed  to  the  exclusive  principles  of 
the  Assembly  of  1S37,  which  did  not  admit  all.  I  would  refer  you  to 
the  advertisement  of  this  convention,  or  meeting  for  consultation. 

"  Whereas,  the  state  of  the  Presbyterian  Church  at  present  is  such  as 
to  demand  the  consultations  and  prayers  of  all  its  Ministers  and  Churches, 
in  order  to  preserve  its  unity  and  peace;  and  whereas,  the  measures  adopted 
at  the  last  Assembly,  excluding  certain  Synods,  and  the  third  Presbyter}'- 
of  Philadelphia,  and  providing  for  the  organization  of  the  Assembly  of 
1S3S,  give  reason  to  apprehend  unhappy  collisions  at  the  opening  of  that 
Assembly,  as  well  as  subsequently;  and  whereas  all  party  conventions  in 
the  Church,  except  for  the  defence  of  rights  which  have  been  assailed, 
.  are  greatly  to  be  deprecated,  it  is  therefore  proposed  and  recommended, 
that  all  the  delegates  to  the  Assembly  of  1S3S,  meet  at  8  o'clock,  on  the 
evening  of  Monday,  the  14th  of  May,  in  the  First  Presbyterian  Church 
of  Philadelphia,  for  the  purpose  of  interchanging  views,  and  of  devis- 
ing such  measures,  as  the  present  exigencies  of  the  Church  may  require." 
Vid.  ante,  p.  56. 

All  the  delegates  were  invited  to  attend;  and  for  what  purpose?  To 
effect  a  partial  organization  of  the  Assembly?  No,  but  a  general  organi- 
zation; one  which  should  embrace  the  representatives  of  the  entire 
Church.  Some  of  the  Old-school  did  attend  this  meeting  for  consulta- 
tion; and  as  to  those  who  did  not,  it  was  their  own  fault;  for  they  had 
been  invited.  The  convention  treats  of  itself  as  a  convention  of  the 
whole  number  of  commissioners:  that  is  the  sense  in  which  they  use  the 
word  we.  Mr.  Cleaveland  used  it  in  the  same  sense.  He  meant  the 
whole  house  thus  addressed — all  the  members  of  it  who  wished  to  form  a 
constitutional  Assembly — not  excluding  any  portion,  which  was  the  ob- 
ject of  the  opposite  party. 

The  next  objection  to  our  proceedings  is,  that  the  old  Moderator  and 
clerks  were  not  expressly  displaced;  that  is,  that  Mr.  Cleaveland  moved, 
that  Dr.  Beman  should  be  Moderator,  and  did  not,  in  so  many  words, 
move  that  Dr.  Elliott  should  be  put  out  of  the  chair.  Gentlemen,  the 
design  of  the  motion  was  perfectly  manifest.  It  was  addressed  to  the  As- 
sembly, but  Mr.  Cleaveland  wished  to  do  as  little  violence  as  possible  to 
the  feelings  of  Dr.  Elliott.  When  he  first  rises,  his  face  is  towards  him, 
but  he  gradually  turns  it  toward  the  entire  body  of  the  members:  his 
motion  was  not,  from  the  very  nature  of  it,  made  to  the  Moderator.  It 
was  his  object  to  do  nothing  discourteous,  only  to  secure  an  impartial 
and  complete  organization;  therefore  he  moves  merely  that  Dr.  Beman 
shall  be  Moderator.  Does  not  this  substitution  displace  the  old  Modera- 
tor, without  any  express  amotion?  Take  the  language  of  the  Constitu- 
tion itself:  the  old  Moderator  is  to  preside  until  another  is  chosen.  Of 
course  when  another  is  chosen  the  former  cannot  remain  in  office.  You 
will  find  the  principle  of  the  law  on  this  subject  laid  down  in  Wilcock 
on  Corporations,  246. 

"  If  the  charter  give  the  '  mayor  for  the  time  being,'  power  to  appoint 
a  town  clerk,  he  has  power  to  amove  the  town  clerk  appointed  by  his 
predecessor  without  any  notice  or  formality,  and  may  exercise  it  by 
simply  appointing  another." 


440 


PRESBYTERIAN  CHURCH  CASE. 


There  is  the  case  of  an  officer  appointed  by  a  predecessor,  just  as  the 
old  Moderator  was  appointed  by  the  Assembly  of  1837,  and  he  may  be 
removed  by  the  simple  appointment  of  another.  The  case  of  the  Mode- 
rator is  still  stronger,  for  he,  according  to  the  Constitution,  is  to  remain 
in  office  only  until  another  is  chosen.  Now,  was  the  great  object  of  the 
New-school',  their  endeavour  to  effect  an  organization  of  the  entire 
Assembly,  a  portion  of  the  members  of  which  had  been  unconstitutional- 
ly deprived  of  their  ecclesiastical  rights,  to  secure  the  equal  representa- 
tion of  the  whole  Church,  leaving  both  Dr.  Green  and  Dr.  Barnes  in  pre- 
cisely the  same  situation  in  which  they  stood  before  the  passage  of  the 
exscinding  resolutions,  to  be  utterly  defeated  by- mere  quibbles  and  quirks 
of  this  kind? 

But  we  are  told  that  Mr.  Cleaveland  remarked  that  every  thing  would 
be  done  with  as  much  expedition  as  possible.  That  is  not  wonderful. 
Look  at  the  situation  in  which  he,  and  those  who  aided  him  in  endea- 
vouring to  secure  his  object,  stood.  In  every  thing  they  were  governed 
by  the  circumstances  in  which  they  acted.  You  observe  that  the  trus- 
tees of  the  church  had  taken  rneasures  to  exclude  from  it  any  body 
attempting  to  organize  itself,  unless  under  the  old  Moderator,  and  a  paper 
stating  their  resolution  had  been  put  into  Dr.  Beman's  hands.  I  say  that 
this  notice  would  have  justified  Mr.  Cleaveland  in  rising  and  saying,  that 
as  they  were  not  at  liberty  to  use  that  church  to  organize  the  Assembly 
otherwise  than  as  the  old  Moderator  and  clerks  choose,  and  as  it  was 
evident  that  they  were  attempting  an  unlawful  organization,  he  called  on 
all  those  who  desired  to  secure  a  lawful  Assembly  to  retire.  He  had  a 
right  to  call  upon  them  to  retire,  and  they  a  right  to  organize  themselves 
even  in  the  street,  relying  upon  the  authority  of  the  case  which  has  been 
furnished  by  the  opposite  counsel,  from  9  Wendell,  400.  In  that  case, 
a  portion  of  a  religious  assembly  had  undertaken  to  organize  themselves 
to  the  exclusion  of  another  portion,  the  latter  having  the  presiding  officer 
Avith  them.  No  force  or  violence  was  employed,  but  the  latter  were 
given  to  understand  that  they  could  not  have  the  use  of  the  church;  and  the 
Supreme  Court  of  New- York,  decided  that  they  were  justified  in  organiz- 
ing the  assembly  in  the  open  air,  and  sustained  the  organization  which 
was  so  effected.  True,  the  learned  counsel  on  the  opposite  side  relies  on 
this  case  for  support,  because  the  party  that  he  represents  resembles  that 
whose  organization  was  thus  sustained,  in  having  the  presiding  officer 
with  them ;  but  he  is  too  familiar  with  the  use  of  cases  not  to  know  that 
that  little  circumstance  is  of  no  importance.  He  cannot  have  suffered  it 
to  lead  him  astray  so  far,  that  he  has  entirely  lost  sight  of  the  great  prin- 
ciple of  the  case.  What  is  that  principle?  That  the  portion  who  were 
endeavouring  to  effect  a  complete  organization  were  the  lawful,  and  the 
other  portion  an  unlawful  assembly.  The  Supreme  Court  say,  that  the  lat- 
ter ought  to  have  allowed  all  to  take  their  seats,  and  if  they  did  not  like  the 
conduct  of  the  presiding  officer,  amoved  him;  that  the  principle  on  which 
they  were  attempting  to  organize  the  body  was  unlawful,  and  the  organi- 
zation of  those  who  had  been  excluded  lawful.  They  say,  that  those  who 
wished  to  secure  a  lawful  organization  would  have  had  a  right  to  retire 
into  the  open  air,  to  have  constituted  their  meeting  5r<6  dio,  and  that  such 
an  assembly  would  have  been  sustained.  And  I  hope  every  tribunal  in 
the  country  would  have  decided  in  the  same  way.     Here  Dr.  Mason  and 


MR.  WOOD'S  ARGUMENT.  441 

Mr.  Cleaveland,  while  one  portion  of  the  Assembly  were  insisting  on 
effecting  in  a  peculiar  way  to  the  exclusion  of  a  part  of  the  members  an 
unlawful  organization,  with  another  portion  were  attempting  to  effect  a 
lawful  organization,  which  should  bring  in  the  entire  body.  An  effort 
was  made  in  that  case  to  exclude  the  presiding  officer;  in  this  to  exclude 
the  representatives  of  a  large  portion  of  the  Church,  who  still  had  a  right 
to  their  seats,  having  never  been  constitutionally  removed — as  substantial 
a  right  as  that  of  any  member.  In  both  cases  the  principle  is  the  same. 
In  each  the  party  attempting  an  unlawful  organization  had  a  right  to  the 
use  of  the  church.  There  the  other  party,  going  into  the  open  street 
organized  themselves,  and  that  organization  was  sustained.  Here,  if  Mr. 
Cleaveland  had  chosen  to  do  the  same  thing,  inasmuch  as  they  were 
denied  the  use  of  that  house,  as  it  was  the  determination  of  the  trustees,  that 
only  those  should  use  it  who  were  willing  to  organize  themselves  under 
the  old  officers,  self-constituted  dictators,  a  triumvirate  who  were  to  be 
permitted  to  do  as  they  pleased,  when  he  found  these  officers  persisting 
in  an  attempt  to  create  an  unlawful  assembly,  he  had  a  perfect  right  to 
call  upon  those  who  were  opposed  to  an  exclusive  organization  to  retire 
to  an  adjoining  open  place,  to  Washington  square,  if  he  had  liked,  and  I 
trust  that  if  they  had  chosen  to  obey  the  call,  their  organization  in  the 
open  air  would  have  been  borne  out  in  any  court  in  Pennsylvania.  In- 
stead of  that,  however,  in  order  to  give  the  Old-school  a  full  opportunity 
to  come  into  the  lawful  assembly,  and  to  secure  an  organization  of  the 
entire  body,  the  New-school  remained,  and  under  all  the  embarrassments 
of  their  situation  effected  their  object. 

What  did  Dr.  Fisher  say  was  the  reason  he  did  not  try  to  take  the 
chair,  when  elected  Moderator?  That  he  knew  such  an  attempt  would 
create  confusion  and  disturbance:  that  he  was  afraid  Dr.  Elliott  would  not 
give  up  the  chair.  Did  not  the  remarks  of  Mr.  Cleaveland  suppose  a 
determination  on  the  part  of  Dr.  Elliott  to  prevent,  if  possible,  every 
effort  to  secure  a  lawful  organization  ?  Why,  when  Mr.  Cleaveland  uttered 
the  simple  words,  "  counsel  learned  in  the  law,"  the  hammer  of  the  Mode- 
rator and  his  calls  to  order,  sounded  with  redoubled  strength;  and  the 
clique  around  him  called  loudly  to  order.  If  Dr.  Fisher  or  Dr.  Beman 
had  advanced  towards  the  chair,  those  sounds  would  have  burst  forth 
with  ten  fold  violence;  they  would  have  drowned  every  other.  Look  at 
the  difficulties  by  which  these  men  were  surrounded:  they  did  every 
thing  in  the  way  which  they  thought  best  calculated  to  quiet  the  trustees. 
Dr.  Fisher  says,  that  they  were  appprehensive  that  the  trustees  might  in- 
terfere, and  resort  to  force.  Therefore  they  did  nothing  which  could  by 
possibility  be  considered  discourteous:  their  object,  as  they  had  plainly 
told  their  Old-school  brethren  a  few  hours  before,  was  simply  to  effect  a 
lawful  organization,  to  bring  in  the  entire  Church;  and  to  avoid  all  diffi- 
culty with  the  trustees,  they  effected  this  in  as  short  a  time  as  possible. 
Now,  gentlemen,  this  is  the  question  which  arises,  in  applying  the  prin- 
ciples of  the  case  cited,  on  which  that  portion  of  the  Assembly  that  re- 
mained in  the  church  rely.  The  other  portion  having  taken  the  advice 
of  counsel,  had  been  told  that  the  exclusion  of  a  part  of  the  members  was 
wrongful,  and  they  wished  to  effect  an  organization  which  should  include 
all  of  both  parties.  Now,  they  might  have  retired  into  the  open  air  to 
accomplish  this  end;  but,  instead  of  that,  saying  that  they  hoped  what 

56 


442 


PRESBYTERIAN  CHURCH  CASE. 


they  did  would  not  be  considered  discourteous,  and  that  they  would  en- 
deavour to  be  as  expeditious  as  possible,  they  organized  the  Assembly  in 
the  house.  Was  not  that  organization  as  good,  as  if  they  had  effected  it 
after  going  out  into  the  street,  or  into  a  public  square?  Unquestionably 
it  was. 

But,  next,  say  our  opponents,  your  proceeding  was  unlawful,  because 
you  did  not  put  in  the  room  of  Dr.  Elliott  the  last  Moderator  before  him, 
who  was  present.  It  seems  that  there  were  one  or  two  gentlemen  present, 
who  had  been  Moderators  subsequently  to  Dr.  Beman.  In  the  first  place, 
I  answer,  that  the  rule  does  not  apply  at  all  to  such  a  case.  It  amounts  only 
to  this.  To  facilitate  the  transaction  of  business,  and  prevent  unnecessary 
trouble  and  embarrassment,  the  Constitution  orders  that  the  Moderator  of 
the  previous  year  shall  continue  in  office  until  another  is  chosen.  And, 
then,  to  carry  out  the  principle  a  little  farther,  the  Assembly  has  adopted 
a  regulation,  that  if  the  old  Moderator  is  not  present,  the  next  before  him 
shall  preside.  But  I  say,  the  old  Moderator  was  present,  and  had  taken 
the  chair,  but  he  performed  certain  acts  in  the  organization,  which  amount- 
ed to  a  refusal  to  do  his  duty:  this  was  a  case  to  which  the  rule  refer- 
red to,  did  not  apply  at  all;  and  therefore  the  Assembly,  acting  under 
their  constitutional  powers,  had  a  right  to  choose  any  one  to  preside;  and, 
moreover,  as  they  were  here  acting  under  another  power — their  power  to 
secure  a  lawful  organization,  they  had  a  right  to  put  in  the  chair  one  who 
would  do  his  duty:  the  selection  was  a  matter  for  their  own  judgment. 
In  passing,  I  may  remark,  that  all  who  had  been  Moderators  subsequently 
to  Dr.  Beman,  and  who  were  present,  seem  to  have  been  of  the  Old-school 
party,  and  therefore  in  concert  with  the  Moderator  and  clerks;  still,  I 
am  willing  to  rely  here  upon  the  right  of  the  body  to  choose  their  own 
Moderator.  But,  suppose  that  they  ought  to  have  taken  the  next  in 
order — I  believe  that  was  Dr.  Witherspoon — suppose  they  ought  to  have 
put  him  in  the  chair,  and  did'nt  do  it:  this  was  a  violation  of  a  mere  rule 
of  the  house;  and  certainly  the  house  itself  could  dispense  with  a  rule  of 
the  house.  At  least,  no  man  of  common  sense  will  say,  that  the  error 
vitiated  the  organization.  So  the  Assembly  themselves  decided  in  another 
case — in  1835.  At  the  commencement  of  the  session  of  that  year.  Dr. 
Beman  presided,  in  the  absence  of  the  old  Moderator,  though  he  was  not 
the  last  one  present.  Well,  the  business  proceeded  regularly  under  his 
presidency,  the  clerks  made  their  report,  and  the  commissions  afterwards 
handed  in  were  received,  before  the  irregularity  was  discovered.  But  did 
it  vitiate  these  proceedings?  Was  the  organization  destroyed?  Not  at 
all.  When  Dr.  Beman  had  retired,  and  Dr.  M'Dowell  taken  his  place, 
did  they  go  back,  as  if  every  thing  done  was  void,  and  do  it  over  again? 
No;  they  simply  took  up  the  business  where  it  was,  when  interrupted  by 
the  discussion  in  regard  to  the  Moderator.  This  precedent  confirms  my 
views,  showing  that  the  removal  of  an  officer  is  not  a  revolution,  and  does 
not  make  necessary  a  complete  re-organization  of  the  Assembly.  That 
the  subsequent  proceedings  may  properly  be  a  mere  continuation  of  the 
previous  business,  taken  up  where  it  was  temporarily  dropped. 

I  now  come  to  a  point  very  much  relied  upon  by  our  opponents. 
They  say  that  they  were  really  the  majority  of  the  whole  body;  that 
our  attempt  is  to  oust  them  by  a  mere  intendment  of  law:  this  they  re- 
peat over  and  over  again  as  the  chief  burden  of  their  song.      Now,  in  the 


MU.  WOOD'S  ARGUMENT'.  ^^3 

first  place,  how  are  you  to  ascertain  when  a  question  is  put,  on  which 
side  the  majority  are,  unless  by  the  vote?  His  Honour  has  already  de- 
cided that  that  is  the  only  mode,  that  the  majority  of  voices  is  to  be 
taken  as  the  majority  of  the  body.  If  some  don't  choose  to  vote  you 
can't  make  them  vole:  but  if  any  are  present,  and  prefer  to  say  nothing, 
they  cannot  expect  to  be  counted.  I  refer  on  this  point  to  Angell  8f 
Jimes,  67. 

"  After  an  election  has  been  properly  proposed,  whoever  has  a  ma- 
jority of  those  who  vote,  the  Assembly  beina;  sufficient,  is  elected, 
although  a  majority  of  the  entire  Assembly  altogether  abstain  from  voting; 
because  their  presence  suffices  to  constitute  the  elective  body,  and  if  they 
neglect  to  vote  it  is  their  own  fault,  and  shall  not  invalidate  the  act  of  the 
others,  but  be  construed  an  assent  to  the  determination  of  tlie  majority  of 
.those, who  do  vote.  And  such  an  election  is  valid,  though  the  majority 
of  those  whose  presence  is  necessary  to  the  Assembly,  protest  against  any 
election  at  that  time,  or  even  the  election  of  the  individual  who  has  the 
majority  of  votes;  the  only  manner  in  which  they  can  effectually  pre- 
vent his  election  is  by  voting  for  some  other  qualified  person." 

If  I  thought  it  possible  to  make  this  doctrine  plainer,  I  could  cite  nu- 
merous cases  which  show  beyond  a  doubt,  that  where  a  majority  refuse, 
when  all  have  opportunity,  to  vote,  they  are  not  to  be  counted;  that  the 
majority  of  the  actual  voters  decide  the  question. 

Judge  Rogers.     I  have  no  doubt  on  that  point. 

Mr.  Wood.  If  your  Honour  will  indulge  me  for  a  moment,  I  will 
show  here,  what  I  proved  on  Saturday  to  exist  in  other  cases,  a  remarka- 
ble coincidence  between  the  laws  of  the  land,  and  the  rules  of  this  vene- 
rable institution,  the  Presbyterian  Church.  You  have  already  seen  this 
in  a  variety  of  instances.  You  have  seen  the  good  practical  sense  of  the 
Assembly  before  it  was  frittered  away  in  these  proceedings. 

"  Members  ought  not,  without  weighty  reasons,  to  decline  voting,  as 
this  practice  might  leave  the  decision  of  very  interesting  questions  to  a 
small  proportion  of  the  judicatory.  Silent  members,  unless  excused  from 
voting,  must  be  considered  as  acquiescing  with  the  majority." — Append. 
to  Const.  R.  30. 

As  the  object  of  all  the  remarks  which  have  been  made  in  regard  to 
this  so  called  intendment  of  law,  has  been  to  create  prejudice  in  the 
minds  of  the  jury,  on  the  subject  of  the  majority,  I  would  beg  to  be 
indulged,  while  I  make  a  few  farther  remarks  upon  it.  Our  opponents 
seem  to  rely  upon  the  power  of  a  majority  to  disregard  all  right,  and  to 
force  through  the  Assembly  any  measures  that  please  them,  no  matter 
how  prejudicial  to  the  interests  of  others.  In  the  case  already  cited, 
9  Wendell,  402,  the  Supreme  Court  of  New  York  established  a  very 
different  doctrine.  In  that  case,  as  here,  the  objection  was  pressed,  that 
the  part  who  remained  were  the  majority;  which  seems  to  mean  that 
they  who  have  a  majority  may  do  what  they  like,  simply  because  they 
have  a  majority.  But  this  is  not  the  principle  of  law  there  laid  down. 
The  minority  which  withdrew  was  sustained,  was  declared  the  true 
Assembly.  The  others  could  not  avail  themselves  of  the  principle  of  a 
majority^  because  the  Constitution  did  not  require  a  majority  to  form  a 
quorum.  Only  a  small  minority  withdrew,  but  the  only  question  to  be 
asked  relative  to  numbers  was,  had  they  a  constitutional  quorum?     This 


444  PRESBYTERIAN  CHURCH  CASE. 

principle  you  meet  with  on  the  page  of  9  JVendell,  next  to  that  which  I 
have  just  referred  to.  The  counsel  for  the  majority  had  objected  that 
the  presence  of  a  majority  was  necessary  to  form  the  true  body;  but  the 
court,  adverting  to  this  objection,  say,  that  the  society  of  Friends  do  not 
act  upon  the  principle  of  majorities;  that  if  but  a  minority  organize  the 
meeting,  that  minority  being  a  quorum,  it  is  a  lawful  organization;  but 
that  if  the  minority  did  not  constitute  a  quorum,  and  the  others  proceed- 
ed to  form  the  assembly  in  an  unlawful  manner,  both  assemblies  would 
be  unlawful.  The  majority  principle  however  they  decided,  did  not 
apply  in  that  case;  and  that  if  the  body  organized  in  the  open  air,  had  a 
quorum,  they  must  be  sustained.  There  is  then  no  difficulty  as  to  this 
point  in  the  present  case,  since  in  the  General  Assembly  fourteen  are  a 
quorum. 

This  doctrine  of  a  majority  is,  I  am  afraid,  too  often  understood  to 
mean,  that  a  majority  is  without  the  pale  and  controul  of  law.  But, 
gentlemen,  you  must  recollect  that  in  a  country  of  law,  a  majority 
has  no  power  to  do  wrong.  Suppose  three  persons  own  a  ship  in  equal 
shares,  can  two  resolve  to  exclude  their  companion,  and  take  the  ship 
wholly  into  their  possession?  This  is  about  the  amount  of  the  majority 
doctrine  for  which  these  gentlemen  contend.  But  what  is  the  law  on 
this  point?  That  where  one  portion,  though  a  majority  exclude  another 
portion,  they  form  an  unlawful  assembly.  I  have  read  page  after  page  to 
show,  and  have  I  think  clearly  demonstrated,  that  every  rightful  member 
of  the  body  must  have  an  opportunity  to  come  in,  or  the  organization  is 
unlawful.  Every  one  must  know  of  the  meeting.  Suppose  a  special 
notice  be  given  to  a  majority  of  the  members:  is  that  sufficient?  No;  the 
meeting  convened  on  such  notice  would  be  illegal.  Every  member,  even 
the  least,  must  be  allowed  to  participate ;  and  this  especially  in  the  case 
of  a  delegated  body.  How,  will  you  constitute  a  representative  assem- 
bly, without  giving  full  opportunity  to  all  entitled  to  take  seats?  But  I 
do  not  leave  this  matter  here.  How  have  our  opponents  found  out  that 
they  had  a  majority  in  that  body — a  majority  ready  to  carry  out  the 
exscinding  resolutions;  a  majority  approving  of  the  work  of  this  eccle- 
siastical guillotine,  cutting  off  thousands  without  mercy  or  warning? 
How  could  they  know  certainly  any  thing  about  the  matter  without  a 
a  vote's  being  taken?  Has  it  not  been  shown  that  they  might  have  been 
mistaken  in  their  men?  It  seems  that  even  all  of  the  Old-school  party 
of  1838  had  not  been  gotten  up  to  the  sticking  point.  Mr.  Phelps,  who 
says  that  he  has  taken  great  pains  to  ascertain  the  facts  on  this  subject, 
tells  us  that  there  were  enough  Old-school  men  opposed  to  carrying  out 
the  principles  of  the  excision,  to  have  secured  the  admission  of  the  rejected 
commissioners,  had  the  question  been  fairly  presented.  But  it  never 
was  allowed  to  come  before  them.  He  says  that  there  would  have  been 
a  hundred  and  forty  in  favour,  and  but  one  hundred  and  thirty-six  against, 
Dr.  Mason's  resolutions;  and  where  is  there  a  witness  who  has  contra- 
dicted this  statement?     There  is  not  one. 

But  the  other  side  rely  upon  the  number  remaining  with  the  Old- 
school,  after  the  other  party  had  retired.  But  what  does  that  show.  Not 
at  all  what  they  would  say.  It  shows  only  how  many  sympathized  with  the 
Old-school,  after  the  two  portions  had  separated.  It  is  not  strange  that 
after  the  organization,  some  who  disapproved  of  the  excision,  chose  to 


MR.  WOOD'S  ARGUMENT.  445 

remain  with  the  Old-school,  merely  from  temporary  prudential  considera- 
tions, inasmuch  as  they  had  in  their  hands  the  books,  papers,  seminaries, 
and  all  the  property  of  the  Church.  Thus  may  have  been  gained  an 
apparent  majority  in  numbers.  But  does  the  fact  of  a  majority's  re- 
maining prove,  that  a  majority  were  ready  to  carry  out  the  exscinding 
acts;  that  they  approved  of  cutting  off  the  rejected  members,  or  of 
leaving  them  out  in  the  organization?  No  such  thing.  How  w^as  it 
with  Dr.  McDowell?  He  declared,  when  examined  on  the  stand,  both 
what  his  language  as  clerk  was,  and  what  was  his  private  opinion;  that 
as  clerk  he  felt  bound  to  obey  the  mandate,  which  he  was  pledged — I  can 
call  it  nothing  but  a  pledge — pledged  to  obey;  but  that  his  private  opin- 
ion was  against  the  measures  of  1837.  Here  was  his  mistake:  he  thought 
that  as  a  ministerial  officer  he  could  not  consider  those  measures  unconsti- 
tutional and  void,  and  lay  them  entirely  out  of  the  question.  If  he  had 
gone  into  the  house,  and  the  question  had  been  put  whether  they  would 
assist  in  securing  a  lawful  organization,  would  he,  as  a  member,  have 
voted  with  the  Old-school?  Then,  he  would  have  been  acting  as  a  mem- 
ber of  the  house,  and  not  as  a  mere  clerk.  Has  Mr.  Phelps'  testimony 
on  this  point  been  contradicted?  How  can  the  gentleman  on  the  other 
side  undertake  to  say,  when  no  actual  vote  was  given,  that  Dr.  Mason's 
motion,  if  the  question  had  been  put,  would  have  been  voted  down? 
There  is  strong  evidence  the  other  way,  and  evidence  entirely  uncontra- 
dicted. A  word  farther  on  this  subject.  It  seems  that  in  1837  and  '38, 
the  Old-school  were  so  proud  of  being  in  the  majority,  that  they  could 
hardly  use  any  other  word  of  designation.  They  cannot  .speak  of  them- 
selves and  their  brethren,  but  as  the  majority  and  minority. 

Mr.  HiihhelL  I  beg  to  remind  Mr.  Wood,  that  Dr.  McDowell  was 
not  a  member  of  the  Assembly  of  1838. 

Mr.  Wood.  Well,  if  he  was  not  a  member,  he  is  an  Old-school  man; 
and  we  show  his  opinion  as  such.  Mr.  Phelps'  testimony,  as  I  said,  is 
uncontradicted. 

Gentlemen,  on  this  subject  of  majorities  and  minorities,  as  claimed  by 
the  respective  parties,  I  will  read  the  language  of  the  Old-school  them- 
selves from  the  Minutes  of  1837,  page  499.  They  are  speaking  of  the 
Old-school  and  New-school,  and  here  is  their  own  opinion  in  regard  to 
the  comparative  strength  of  the  two. 

"  What  are  called  the  Old-School  and  New-school  parties  are  already 
separated  in  fact;  in  almost  every  part  of  our  country  where  those  parties 
exist,  they,  have  less  ministerial  or  Christian  communion  with  one  another 
than  either  of  those  parties  have  with  Christians  of  other  denomina- 
tions; and  they  are  so  equally  balanced  in  point  of  power,  that  for  years 
past  it  has  been  uncertain,  until  the  General  Assembly  was  fully  organiz- 
ed, which  of  those  parties  would  predominate  in  that  body. — Past.  Let. 
Append,  to  Min.  \S^l,p.  499. 

Here  they  come  forward  and  claim  the  power  to  carry  through  any 
measure;  to  cut  oif  any  number  of  their  brethren  on  the  ground  that  they 
are  a  majority.  This  assertion  is  not  true:  it  was  impossible  to  tell 
how  the  parties  would  have  been  divided  on  the  subject  of  Dr.  Mason's 
motion;  but  more  than  all,  this  court  will  never  recognise  and  sanction 
the  principle,  that  a  majority  may  trample  under  foot  the  rights  of  a 
minority. 


446 


PRESBYTERIAN  CHURCH  CASE. 


The  next  objection  made  to  Mr.  Cleaveland's  proceeding  is,  that  in 
rising  to  make  his  motion  he  should  have  addressed  the  chair.  It 
appears  that  he  did  not  do  so.  This  is  a  most  extraordimry  objec- 
tion. What?  when  the  Moderator  refuses  to  do  his  duty,  refuses  to  put 
an  appeal  to  the  house,  manifests  a  fixed  determination  to  proceed  in 
a  course  of  illegal  measures,  despite  the  wishes  of  the  house;  and  a 
member,  in  consequence  of  this  misconduct,  rises,  and  moves  that 
another  Moderator  be  appointed,  and  that  the  old  one  shall  be  displaced, 
he  is  bound  to  address  that  old  Moderator?  This  apppears  to  me  like 
the  grossest  absurdity.  I  venture  to  say  that  such  a  method  of  pro- 
ceeding would  have  been  conti'ary  to  all  usage.  -  Never,  in  any  delibera- 
tive body  is  a  question  which  afiects  the  presiding  officer  put  by  himself. 
Even  a  question  in  regard  to  a  mere  matter  of  compliment  must  be  put 
by  some  one  else.  But  when  Mr,  Cleaveland  made  a  motion  to  displace 
Dr.  Elliott,  and  the  latter  was  trying  in  every  way  to  prevent  him  from 
offering  it,  will  you  say  that  Mr.  Cleaveland  ought  to  have  addressed  him? 
Should  have  addressed  him  when  he  was  calling  to  order,  and  endeavour- 
ing to  prevent  the  question  from  being  put?  Why  this  suggestion  is  so 
extraordinary  that  I  hardly  know  how  to  argue  it.  When  Mr.  Cleave- 
land was  making  his  remarks,  the  Moderator  was  strenuously  endeavour- 
ing to  prevent  him  from  proceeding:  if  under  these  circumstances,  he 
had  addressed  his  motion  to  the  Moderator,  I  should  have  thought  him 
fit  only  for  the  cells  of  an  hospital.  No  man  in  his  senses  can  decide 
that  such  a  motion  was  out  of  order  because  not  addressed  to  the  Moderator. 

But,  say  the  gentlemen  on  the  other  side,  this  is  the  practice.  Let  us 
sec  whether  it  is  so.  Look  at  the  Assembly's  Digest,  332.  Here  is  a 
resolution  passed  by  the  Assembly  in  1792. 

"Resolved,  That  no  minister  belonging  to  the  Synod  of  Philadelphia, 
nor  elder  who  was  a  member  of  the  judicature  when  the  vote  appealed 
from  took  place,  shall  vote  in  the  decision  thereof  by  this  Assembly. 
The  Moderator,  being  a  member  of  the  Synod  of  Philadelphia,  withdrew, 
and  Dr.  McKnight  took  the  chair." 

You  will  find  by  looking  at  the  cases  cited  in  Grey's  Parliamentary 
Practice,  that  since  a  very  early  period,  motions  regarding  the  Speaker 
personally,  have  not  been  put  by  him;  and  that  such  a  motion  maybe 
put  by  any  member  rising  and  making  it.  It  is  the  universal  usage  in 
this  country,  that  a  member  should  put  the  question  upon  every  matter 
in  which  the  presiding  officer  is  personally  concerned;  and  in  such  case 
the  member  cannot  properly  address  that  officer.  But  in  the  present  in- 
stance the  Moderator  never  would  have  put  the  question:  it  would  have 
been  perfectly  ridiculous  to  have  addressed  it  to  him.  Then  it  is  said, 
one  of  the  clerks  should  have  put  it.  But  the  clerks  were  in  precisely 
the  same  predicament  as  the  Moderator:  they  had  combined  with  him  to 
carry  out  the  same  plan  which  he  was  striving  to  execute,  Mr.  Cleave- 
land addressed  the  body  of  comm^issioners.  The  Moderator  had  already 
refused  to  do  his  duty:  it  was  on  that  ground  that  he  made  his  motion. 
The  second  motion — that  for  the  appointment  of  clerks — was  addressed 
to  Dr.  Beman.  Would  it  not  have  been  perfectly  idle  to  have  requested 
the  clerks  to  put  the  question,  when  they  as  well  as  the  Moderator  were 
endeavouring  to  carry  out  the  void  acts  of  1837?  Why,  from  the  very 
nature  of  the  case^  it  was  necessary  that  the  member  making  the  motion 


MR.  WOOD'S  AllGUMENT.  447 

should  also  put  it.  In  all  deliberative  bodies,  a  member  may  rise  and 
put  a  question  during  the  incipient  stages  of  the  organization.  You  will 
excuse  my  going  over  these  various  minute  points:  if  I  should  leave  them 
untouched,  I  might  not  satisfy  the  expectations  of  my  clients. 

Next,  it  is  objected,  that  Mr.  Cleaveland's  motion  was  for  Dr.  Beman  to 
take  the  chair,  and  not  to  appoint  him  Moderator.  I  will  venture  to 
say,  that  four-fifths  of  the  witnesses  have  said  that  he  moved  that  Dr. 
Beman  should  be  Moderator;  but  could  it  make  any  difference,  if  he 
moved  that  he  should  take  the  chair?  When  Mr.  Cleaveland  rises,  he 
says,  "The  Moderator  having  refused  to  do  his  duty,  and  it  being 
extremely  desirable  to  secure  a  constitutional  organization,  I  move  that  Dr. 
Beman  take  the  chair."  Was  not  this  the  same  thing  as  if  he  had  moved 
that  he  should  be  Moderator?  He  grounds  his  motion  on  the  idea  that 
the  Moderator,  who  was  in  the  chair,  having  refused  to  do  his  duty,  was 
unfit  for  the  place,  and  moves  that  Dr.  Beman  shall  take  the  chair.  Was 
not  this  substantially  the  same  thing  as  if  he  had  used  the  other  form  of 
expression?  Could  any  member  have  the  least  difficulty  in  understand- 
ing him  to  mean,  that  Dr.  Beman  should  be  Moderator,  in  the  place  of 
Dr.  Elliott,  who  had  refused  to  do  his  duty. 

In  the  next  place,  it  is  said,  that  the  organization  of  the  Assembly  by 
the  party  desiring  a  complete  organization,  was  wrong,  because  after  dis- 
placing Dr.  Elliott,  putting  Dr.  Beman  in  his  place,  and  choosing  new 
clerks,  they  did  not  immediately  proceed  to  do  what  they  wanted  the 
other  party  to  do  at  first;  they  did  not  go  on  and  dispose  of  the  motion 
that  Dr.  Mason  had  offered.  The  only  answer  which  I  shall  make  to 
this — and  it  must  have  struck  you  already — is,  that  the  great  object  of 
those  who  set  on  foot  these  measures,  was  to  secure  a  general  organization 
of  the  entire  Assembly.  All  of  their  proceedings  were  based  upon  the 
idea  of  the  Moderator  and  clerks  refusing  to  put  the  names  of  certain 
commissioners  on  the  roll.  When  Dr.  Mason  had  made  a  motion  to  have 
them  put  upon  the  roll,  the  Moderator  had  refused  to  entertain  it.  When 
he  had  appealed  from  his  decision  that  that  motion  was  out  of  order,  the 
Moderator  had  refused  to  put  the  question  on  his  appeal;  but  the  only 
object  of  all  his  efforts  was  to  have  the  names  enrolled.  Well,  Dr.  Mason 
and  Mr.  Gilbert  tell  us,  that  they  did  put  them  on;  that  they  had  a  list 
made  out  as  nearly  as  possible,  with  all  the  names  on  the  roll  of  Mr. 
Krebs'  and  Dr.  McDowell,  which  they  had  taken  as  the  basis  of  theirs, 
having  previously  drawn  it  up  as  well  as  they  could,  and  then  corrected 
it  while  Mr.  Krebs  read;  and  that  to  this  they  afterwards  added  the 
names  of  the  exscinded  commissioners.  "  Oh,  but  did  you  actually  attach 
the  two  lists  together?"  "No,  but  I  held  them  both  in  my  hand,  and 
considered  them  both  as  one  roll."  "But  they  were  not  the  roll  merely 
because  you  considered  them  so."  And  pray  how  did  Mr.  Krebs'  list 
become  a  roll?  Was  it  not  by  his  considering  it  so,  as  soon  as  it  had  been 
made  out?  Cannot  a  list  be  a  roll  unless  it  is  all  on  one  sheet?  If  not, 
Mr.  Krebs'  was  not  a  roll.  You  will  say  that  the  object  of  the  New- 
school  was  to  put  all  upon  the  roll;  and  that  when  their  clerks  had  lists 
of  all  in  their  hands,  they  had  enrolled  all.  Look  at  the  case  which  has 
been  brought  forward  on  the  other  side — the  case  of  Mr.  Moore,  whom 
the  Old-school  clerks  put  on  the  roll.  There  was  no  motion  made  for 
his  admission.     How  was  he  received?     Mr.  Krebs  put  down  his  name, 


448  PRESBYTERIAN  CHURCH  CASE. 

and  then  considered  it  as  enrolled.  He  simply  put  it  on  the  list;  no  mo- 
tion was  necessary.  Their  own  conduct  in  the  case  of  Mr.  Moore  war- 
rants the  proceedings  of  our  clerks. 

Oh,  but  all  this  was  a  revolution;  and  the  new  clerks  and  Moderator 
could  not  have  any  roll,  without  having  the  commissions  in  their  hands 
and  examining  them.  •  This  is  a  most  extraordinary  objection.  It  was 
no  revolution  at  all.  We  merely  displaced  a  Moderator  and  two  clerks. 
Was  there  a  revolution  or  a  new  organization  in  1835?  I  believe  not. 
There  the  roll  had  been  reported  under  a  wrong  Moderator;  but  when 
the  right  was  substituted  did  they  go  back  and  make  out  a  new  roll?  No; 
they  merely  went  on  with  the  business ;  merely  continued  the  proceed- 
ings, taking  them  up  where  they  had  been  interrupted,  by  the  motion  to 
displace  the  wrong  presiding  officer.  But  it  is  sufficient  for  us  to  say, 
that  we  could  not  get  the  commissions  from  the  old  clerks:  we  knew 
from  the  first,  what  was  subsequently  shown  when  a  formal  application 
was  made,  that  they  would  not  give  them  over  into  our  hands.  Are  you 
prepared  to  say,  that  when  a  house  has  been  organized,  and  a  clerk  re- 
fusing to  do  his  duty,  displaced,  another  clerk  being  appointed,  the  house 
cannot  go  on  with  business,  because  the  old  officer  declines  to  give  up 
the  commissions?  Will  its  proceedings  be  invalid,  unless  the  new  clerk 
seizes  the  old  one  by  the  shoulders,  and  forcibly  takes  from  him  the 
papers?  Dr.  Mason  and  Mr.  Gilbert  endeavoured  to  get  them.  They 
called  on  Mr.  Krebs  and  Dr.  McDowell,  but  those  gentlemen,  as  was  to 
be  expected,  refused  to  give  them  up.  Unless  the  clerks  and  Moderator 
were  to  be  allowed  to  act  the  part  of  dictators,  to  usurp  all  power,  their 
holding  the  commissions  and  refusing  to  surrender  them  certainly  could 
not  destroy  the  Assembly.  The  circumstance  then  of  the  new  clerks' 
having  so  few  of  these  vouchers  actually  in  their  possession,  cannot  at  all 
affect  our  case. 

Next,  it  is  alleged  that  Mr.  Cleaveland's  motion  was  entirely  out  of 
order,  because  the  first  business  after  the  report  of  the  Committee  of  Com- 
missions had  been  read,  was  the  appointment  of  a  Committee  of  Elections. 
This  is  a  very  fine  doctrine  indeed  for  the  Old-school  brethren.  It  suited 
them  that  every  thing  should  go  on  in  a  regular  track;  that  first  the  roll 
should  be  reported,  and  that  then  the  Moderator  should  call  for  commis- 
sions from  Presbyteries  in  connexion  with  the  Church,  and  refuse  those 
from  Presbyteries  which  he  did  not  choose  to  consider  in  connexion 
therewith.  The  doctrine  is  this:  ■' No  motion  must  be  made  to  compel 
the  clerks  and  Moderator  to  do  their  duty,  for  the  next  business  in  order 
is  the  appointment  of  a  Committee  of  Elections;  and  then  when  that  com- 
mittee has  been  appointed  we  have  got  you  fast.  Then  you  are  out,  and 
cannot  get  in  again  but  by  begging  for  admission  on  your  knees.  If 
you  come  thus,  and  supplicate  for  mercy,  the  Assembly  will  take  or- 
der on  your  cases."  What  is  this  order  which  is  to  be  taken?  It  is 
to  be  determined  whether  the  applicants  are  purely  Presbyterian.  To 
this  end  they  are  to  be  examined  on  experimental  religion.  Then 
indeed  they  would  have  effectually  secured  us.  All  this  is  only  say- 
ing to  us,  "  It  is  no  matter  what  efforts  you  make,  or  how  you  pro- 
ceed; you  can  accomplish  nothing  before  the  organization  is  effected," 
and  when  that  was  secured  our  only  chance  was  gone.  We  could  never 
be  restored,  unless  those  who  had  excluded  us,  chose  in  their  high  mighti- 


MR.  WOOD'S  ARGUMENT.  449 

ness  to  think  proper  to  take  order  on  our  case.  But  we  have  an  easy- 
answer  at  hand.  The  next  thing  to  be  done,  after  the  clerks  have  read 
their  report  of  all  the  regular  and  constitutional  commissions,  is  the  ap- 
pointment of  a  Committee  of  Elections.  But  was  such  a  report  read — a 
report  containing  all  the  names,  excepting  of  those  whose  commissions 
were  informal,  the  duty  of  preparing  which  the  rules  that  have  been  read 
imposed  upon  the  clerks?  Are  we  to  be  told — and  here  I  address  myself 
to  the  feelings  of  every  honest  man — that  the  exscinding  resolutions  were 
regular  and  constitutional;  that  they  were  consistent  with  the  principles 
of  the  law  of  the  land,  by  which  all  these  subordinate  institutions  are 
controlled,  and  with  just  notions  of  civil  liberty;  were  not  a  mere  revolu- 
tionary proceeding;  and  that  therefore  the  commissions  of  the  exscinded 
commissioners  were  invalid?  If  not,  then  it  follows,  that  the  next  business 
.  in  order  was  not  the  appointment  of  a  Committee  of  Elections ;  that  the 
time  for  that  appointment  had  not  yet  arrived,  because  all  the  regular  and 
constitutional  commissions  had  not  been  received  and  enrolled.  But  be- 
sides, every  house  has  the  inherent  power  to  organize  itself  lawfully;  has 
a  right  to  depose  a  presiding  officer,  who,  supported  by  a  clique  of  the 
members,  is  endeavouring  to  carry  out  an  illegal  and  void  measure,  to  thai 
disfranchisement  of  a  portion  of  the  body.  The  only  way  to  rectify  the 
gross  error  ;  to  resist  the  attempt  to  shut  out  a  large  number  of  rightful 
members,  was,  by  moving  the  house  to  displace  the  officers  thus  under- 
taking to  prevent  a  lawful  organization.  To  satisfy  some  people,  gentle- 
men, it  is  necessary  to  present  the  converse  of  every  proposition.  You 
all  know  the  old  saying,  that  where  you  want  a  man  to  understand  that 
his  bull  has  gored  another  man's  ox,  you  must  reverse  the  proposition, 
making  it  appear  that  his  ox  has  been  gored  by  another  man's  bull.  So, 
to  make  these  gentlemen  understand  the  case,  I  will  reverse  it,  and  sup- 
pose that  sixty  Old-school  commissioners  had  been  rejected  by  the  clerks. 
I  ask  you,  can  vou  believe  for  a  moment  that  Dr.  Elliott  would  have  per- 
sisted in  rejecting  them?  Suppose  that  Mr.  Cleaveland,  like  Mr.  Moore, 
had  been  an  Old-school  man,  and  had  come  forward  and  offered  these 
commissions;  and  go  farther,  and  suppose  that  the  clerks  who  had  rejected 
them  were  of  the  New-school — suppose  that  Mr.  Cleaveland  had  said  to 
the  Moderator,  "Here  are  some  commissions  which  are  perfectly  formal 
and  regular  from  the  Presbyteries  belonging  to  the  Synod  of  New  Jer- 
sey. 'IJJiey  were  presented  to  the  clerks,  but  they  have  refused  them, 
being  determined  to  affect  a  partial  organization  of  the  Assembly.  They 
are  resolved  to  secure  the  preponderance  of  the  New-school  party;  and 
certain  measures  calculated  to  accomplish  that  object,  they  are  resolved 
to  carry  out.  They  have  declared  that  it  is  their  intention  to  shut  out 
all  these  Old-school  members,  notwithstanding  that  they  bring  regular 
and  constitutional  commissions,  unless  they  will  come  on  their  knees, 
and  on  the  ground  that  the  Synod  of  New  Jersey  has  been  exscinded, 
and  stripped  of  all  its  Presbyterial  rights,  acknowledge  that  they  are  not 
lawfully  entitled  to  seats."  What  answer  would  Dr.  Elliott  have  made 
to  this  application?  Would  he  have  replied,  "  You  are  out  of  order.  Sir: 
the  next  business  of  the  Assembly  is  the  appointment  of  a  Committee 
of  Elections,  as  is  provided  in  the  fifth  section  of  certain  rules  enacted 
by  the  Assembly  some  ten  or  twelve  years  ago.  That  section  says,  'The 
first  act  of  the  Assembly,  when  thus  ready  for  business,  shall  be  the 

57 


450  PRESBYTERIAN   CHURCH  CASE. 

appointment  of  a  Committee  of  Elections,  whose  duty  it  shall  be  to 
examine  all  informal  and  unconstitutional  commissions,  and  report  on  the 
same  as  soon  as  practicable.'" — Would  that  have  been  his  language? 
No;  he  would  have  seen  directly  that  the  previous  requirements  of  the 
rule  had  not  been  complied  with.  The  appointment  of  a  Committee  of 
Elections  was,  it  is  true,  the  next  business,  when  a  certain  stage  had  been 
reached;  but  to  that  stage  the  proceedings  had  not  yet  advanced.  "  The 
first  act  of  the  Assembly,  when  thus  ready  for  business,  shall  be  the 
appointment  of  a  Committee  of  Elections'^ — When  thus  ready;  but  if 
it  was  the  duty  of  the  clerks  previously  to  put  on  the  roll  the  names  of 
all  whose  commissions  were  formal  and  constitutional,  and  they  had  not 
done  this,  the  house  was  not  yet  ready  for  any  other  business.  The  gross 
and  wilful  error  of  the  clerks  must  first  be  rectified.  It  is  sometimes 
necessary  thus  to  change  the  form  of  the  proposition — to  put  the  bull  for 
the  ox,  in  order  to  make  people  comprehend  the  rights  of  others. 

In  the  next  place,  it  is  said,  that  the  house  did  nothing  wrong,  even  if 
the  clerks  and  Moderator  did,  and  that  therefore  we  had  no  right  to  orga- 
nize the  Assembly  and  go  off',  leaving  a  majority  behind.  We  don't  pre- 
tend that  the  house  did  any  thing  wrong.  We  say  that  the  clerks  and 
Moderator  violated  their  duty,  and  that  the  house  displaced  them  on  that 
account.  The  question  on  their  amotion  was  put  and  passed  by  an  un- 
doubted majority.  How  it  would  have  gone,  had  all  voted,  I  cannot 
venture  to  say;  but  some,  though  a  full  opportunity  was  given,  did  not 
choose  to  vote;  therefore  the  majority  of  those  actually  voting  must  be 
considered  the  house.  If  it  were  necessary,  I  would  go  farther  and  say, 
that  if  the  majority  of  the  whole  were  determined  to  exclude  a  portion  of 
their  brethren,  they  were  determined  to  organize  the  body  in  an  unlaw- 
ful manner;  and  that  therefore  the  remaining  portion,  though  a  minority, 
and  though  the  others  had  voted  them  down,  if  there  were  only  a  suffi- 
cient number  to  form  a  quorum,  had  a  perfect  right  to  withdraw  from 
the  house,  and  on  the  outside  organize  the  Assembly,  on  the  principle  of 
admitting  every  member  of  the  entire  body  to  his  place.  I  say  that 
when  one  portion  of  the  commissioners  insisted  on  forming  a  lawful  or- 
ganization, and  another  portion — a  majority  if  you  please — insisted  on 
forming  an  unlawful  one,  those  desiring  the  lawful  organization,  would 
have  had  a  right,  if  they  could  not  accomplish  their  object  in  the  house,  to 
have  retired  to  the  next  convenient  spot,  and  there  organized  the  body, 
excluding  none  of  their  brethren,  but  admitting  all  to  the  seats  to  which 
they  were  entitled.  I  say  that  this  is  an  inherent  right;  a  right  which  is 
indispensable  to  the  protection  of  the  minority.  Will  you  tell  me  that 
in  a  delegated  body,  a  mere  majority  may  organize  themselves  to  the 
exclusion  of  a  large  part  of  the  members;  and  that  the  minority  are 
completely  manacled,  are  bound  to  submit,  and  thus  go  on  with  the 
transaction  of  business?  I  never  would  submit  to  such  an  usurpation 
and  abuse  of  power.  The  doctrine  is  directly  counter  to  that  laid  down 
by  the  Supreme  Court  of  New  York,  and  I  think  that  no  tribunal  in  this 
country  can  possibly  give  it  their  sanction.  The  consequence  of  the 
Assembly's  being  unlawfully  constituted  is  not  that  all  its  acts  are  abso- 
lutely void.  It  may  still  be  the  Assembly  de  facto,  and  its  acts  may  be 
valid  until  set  aside  by  the  proper  tribunal.  Therefore  the  body,  though 
illegally  organized,  may  go  on  and  transact  its  regular  business.  Every  act 


MR.  WOOD'S  ARGUMENT. 


451 


not  impeached  by  a  mandamus  or  quo  ivarranto,  may  take  effect,  be- 
cause it  is  enacted  by  a  de  facto  body.  I  beg  that  you  will  understand 
me  thoroughly  upon  this  subject.  I  do  not  mean  to  say,  that  whenever  a 
portion  of  the  members  of  an  assembly  are  excluded,  they  must  proceed 
to  organize  the  body  in  a  lawful  manner,  going  upon  the  basis  of  admit- 
ting all  to  their  seats,  but  that  every  member  is  bound  to  resist  an  un- 
lawful organization.  Suppose  that  after  we  had  organized  ourselves,  the 
Old-school  had  come  in,  according  to  the  suggestion  of  one  of  the  oppo- 
site counsel,  and  voted  us  down.  Well,  if  they  had  done  so,  they  would 
have  been  exercising  an  undoubted  right:  they  had  a  right  to  vote  us 
down,  but  not  to  shut  us  out.  The  latter  they  could  not  do,  unless  the 
law  of  the  land  goes  to  the  length  of  saying,  that  a  majority  may  always 
do  as  they  please,  and  may  trample  upon  the  most  sacred  rights  of  the 
minority.  But  that  question  does  not  properly  arise  here:  the  Old-school 
could  not  have  got  a  majority  to  agree  in  carrying  out  the  illegal  and  void 
measures  of  1837;  therefore  the  task  of  carrying  them  through  to  their 
consummation  was  allotted  to  the  Moderator  and  clerks.  No  one  has 
ventured  to  deny  the  testimony  of  Mr.  Phelps  upon  this  point.  The 
officers  of  1S37,  and  a  clique  of  the  Old-school,  then,  were  endeavouring 
to  drive  these  measures  through,  in  despite  of  a  majority  of  the  house. 
Therefore  the  Moderator  refused  to  put  an  appeal  from  his  decision;  and 
therefore,  when  a  motion  was  made  to  displace  him,  he  and  the  clique 
with  whom  he  was  in  concert,  endeavoured  by  their  noise  to  prevent  its 
being  put.  They  had  assumed  the  sovereign  authority  of  dictators,  and 
sought  to  control  the  entire  action  of  the  house. 

(Here  the  jury  were  allowed  a  recess  often  minutes.) 
The  next  point  which  I  shall  notice  is  the  objection  that  the  question 
on  Mr.  Cleaveland's  motion  was  not  reversed.  It  is  said  that  Mr.  Cleave- 
land  and  Dr.  Beman  ought  to  have  been  examined  on  this  subject ;  and 
great  reliance  is  placed  upon  the  fact  that  we  did  not  read  their  deposi- 
tions. To  this  I  answer  only,  that  if  those  depositions  had  contained 
any  thing  favourable  to  the  defence,  the  opposite  counsel  would  unques- 
tionably have  read  them.  I  am  warranted  in  saying,  though  not  at 
liberty  to  tell  you  what  the  depositions  do  contain,  that  they  would  have 
read  them,  as  they  might  have  done,  if  they  could  have  found  in  them 
aught  favourable  to  their  cause.  These  depositions,  as  I  said  yesterday, 
were  taken  before  any  of  these  petty  questions  of  order  were  started,  and 
were  taken,  just  like  Dr.  Nott's,  on  other  points.  I  am  fully  warranted 
in  saying  that  the  latter  was  withheld,  after  his  Honour  had  overruled 
certain  parts,  for  the  same  reason  which  induced  us  to  omit  reading  the 
two  others.  But  the  counsel  tell  us,  that  Mr.  Cleaveland  had  of  course 
peculiar  knowledge  of  the  remarks  which  he  made  before  introducing  his 
motion;  and  we  are  asked  to  produce  the  paper  from  which  he  read. 
There  is  nothing  at  all  in  this.  He  did  not  read  from  any  paper;  that  is, 
he  did  not  confine  himself  to  the  paper  that  he  held  in  his  hand.  The  testi- 
mony shows  that  the  few  remarks  which  he  made  were  chiefly  extempo- 
raneous. Now  a  man  who  makes  a  few  such  remarks  in  a  case  entirely 
out  of  the  ordinary  course  of  business,  and  who,  as  I  presume  Mr.  Cleave- 
land was — indeed  several  of  the  witnesses  have  told  us  so — is  a  good  deal 
agitated,  is  not  more  likely  to  remember  them,  than  those  who  saw  and 
heard  him  at  the  time,  and  were  more  collected.     As  he  did  not  confine 


452 


PRESBYTERIAN  CHURCH  CASE. 


himself  to  the  paper  there  was  no  reason  for  preserving  it.  What,  he 
actually  said  was  afterwards  embodied  in  the  minute  of  the  transaction: 
there  can  be  no  difficulty  at  all  as  to  what  his  remarks  were.  It  would- 
be  a  waste  of  time  to  go  over  the  evidence  on  the  subject  of  the  reversal 
of  the  question.  I  shall  examine  the  testimony  of  but  two  of  the  wit- 
nesses on  this  point.  Many  swear  directly,  and  put  it  beyond  the  possi- 
bility of  a  doubt,  that  all  of  the  questions  were  reversed.  The  fact  that 
there  were  some  negative  votes  shows  the  same  thing  conclusively.  Dr. 
Elliott  says  that  there  were  some  negatives;  and  nearly  all  the  witnesses 
who  testify  to  the  same  fact,  tell  us  that  these  negatives  came  from 
the  south-west  quarter  of  the  house.  Of  course,  then,  they  came  from 
the  Old-school,  who  alone  occupied  that  quarter.  Could  they  with  any 
propriety  have  voted  no,  if  the  question  was  not  reversed  ?  But  Dr.  Hill's 
testimony  must  be  conclusive  upon  this  subject.  He  was  not  opposed  to 
the  measures  of  the  New-school,  as  has  been  said;  but  he  was  agitated 
and  in  difficulty.  He  was  afraid  that  the  proceedings  contemplated  might 
lead  to  disturbance  and  uproar;  and  therefore  had  made  up  his  mind  to 
take  no  part  in  them.  But  he  sat  by,  watching,  as  he  tells  us,  with  great 
anxiety,  the  progress  of  affiiirs.  He  says,  positively,  that  the  question 
was  reversed;  that  he  listened  attentively  to  hear  the  reversal,  because 
he  had  doubted  which  of  two  things  would  take  place — whether  the  Old- 
school  party  would  not  vote  at  all,  or  whether  they  would  vote  it  down. 
His  testimony  was  very  little  different  from  that  of  Mr.  Lathrop's,  who 
recollected  the  reversal,  so  as  to  be  able  to  swear  positively  to  it,  because 
he  himself  voted  in  the  negative.  Witness  after  witness  has  sworn,  with 
almost  equal  positiveness,  that  the  different  questions  were  put  in  both  the 
affirmative  and  negative:  that  there  were  some  negative  votes,  all  admit; 
and  that  there  was,  in  each  instance,  a  decided  majority  of  the  actual 
voters  in  favour  of  the  question,  is  not  disputed.  I  think,  then,  you  can 
have  no  hesitation  in  deciding  this  point.  I  would  here  call  your  atten- 
tion to  a  very  obvious  rule  of  evidence,  and  of  common  sense.  The  tes- 
timony of  those  who  swear  directly  to  a  positive  fact,  is  not  to  be  over- 
come by  evidence  that  another  person  merely  did  not  hear  or  see  the 
same  thing.  A  man  walks  up  Chesnut  street,  and  the  question  arises, 
whether  he  had  an  umbrella  in  his  hand.  One  swears  that  he  saw  it,  his 
attention  having  been  drawn  to  the  circumstance,  by  the  fact  that  it 
appeared  about  to  rain.  Another  swears  that  he  saw  the  man  at  the  same 
time,  but  did  not  see  any  umbrella,  and  don't  believe  that  he  carried  one. 
Which  of  these  two  are  you  to  believe  ?  The  one  who  swears  positively 
that  he  saw,  or  the  one  who  did'nt  see?  I  pass  this  matter  by,  without 
farther  remark. 

Next,  it  is  said,  that  if  the  members  of  our  Assembly  had  let  the  oppo- 
site party  go  on  with  their  organization  in  their  own  way,  however  unlaw- 
ful that  might  be,  and  had  then  applied  for  relief,  it  would  have  been 
granted.  The  first  gentleman  Vvho  addressed  you  on  the  other  side,  said 
that  he  had  not  the  least  doubt,  that  if  we  had  let  them  go  on,  and  organize 
the  Assembly  unlawfully,  we  should  afterwards  have  been  all  let  in,  to 
partake  of  the  fatted  calf;  should  all  have  feasted  on  the  delicious  banquet. 
Why,  gentlemen,  when  you  find  the  Old-school  taking  one  step  towards 
carrying  out  the  void  acts  of  1837,  how  can  you  believe  that  they  will 
not  take  another?    When  you  find  them,  afterwards,  in  their  Assembly, 


MR.  WOOD'S  ARGUMENT.  450 

carrying  out  the  same  measures,  acting  upon  the  very  same  principles 
from  first  to  last,  from  the  opening  minute  to  the  end  of  the  statistical 
.table,  what  mockery  does  such  language  appear  to  be.  In  the  heat  and 
zeal  excited  by  the  present  controversy — we  all  must  admire  the  zeal 
which  he  has  manifested — the  learned  counsel  brings  himself  to  believe, 
that  now,  if  your  verdict  should  sanction  the  unlawful  organization  of  the 
Old-school,  even  now,  those  who  have  been  excluded,  may  be  received 
back,  and  partake  of  the  fatted  calf,  prepared  to  be  eaten  by  both.  But, 
after  the  exscinding  resolutions  are  passed  in  1837,  indemnity  is  promised 
to  the  trustees,  and  pledges  are  exacted  from  the  clerks;  after  the  conven- 
tion in  1838,  determines  to  carry  out  those  resolutions,  and  declares  them 
the  only  true  basis  of  a  legitimate  organization  of  the  Assembly;  and, 
after  the  Moderator  and  clerks  so  fully  redeem  their  pledges,  and  are  so 
strongly  supported  by  the  great  body  of  the  Old-school,  in  their  unlawful 
attempt — after  all  this,  do  you  suppose  that  these  same  men,  if  backed 
by  your  verdict,  will  withdraw  all  their  resolutions  and  proceedings,  admit 
those  who  have  been  excluded,  to  the  bosom  of  the  Church,  and  spread 
before  them  a  delicious  feast?  If  they  could  make  us  believe  a  position 
of  this  kind,  they  might  well  exclaim, 

O  Wisdom,  thou  hast  fled  to  brutish  beasts. 
And  men  have  lost  their  reason ! 

The  next  ground  taken  by  our  opponents  is,  that  there  were  two  Mode- 
rators in  nomination;  that  we  were  in  fact  voting  for  two  candidates, 
and  that  therefore  the  division  ought  to  have  been  made  by  calling  the 
roll,  and  marking  the  yeas  and  nays.  They  say,  that  taking  the  question 
viva  voce  did  not  answer.  Dr.  Elliott  in  nomination!  and  the  question 
to  be  put,  which  of  the  two  should  be  Moderator!  Was  there  any  ques- 
tion of  choosing  Dr.  Elliott?  Why  he  was  to  be  displaced:  there  was 
but  one  person  in  nomination.  Dr.  Elliott  was  the  old  Moderator,  and, 
as  I  have  shown,  over  and  over  again,  was  to  continue  in  otBce  only  until 
another  should  be  chosen.  Another  was  named,  and  he  was  the  only  can- 
didate. Then,  according  to  the  Assembly's  own  rules,  the  question  need 
not  be  taken  by  calling  the  roll:  indeed,  't  need  not  be  reversed.  It 
would  have  been  contrary  to  all  rule  to  have  taken  the  yeas  and  nays  in 
such  a  case,  unless  they  were  called  for  by  some  member. 

But,  it  is  said,  that  no  opportunity  was  given  for  debate.  Did  any  body 
want  to  debate?  But  the  opportunity  was  in  a  great  measure  precluded 
by  the  whole  proceeding's  being  carried  on,  as  we  had  avowed  it  was  our 
intention  to  carry  it  on,  with  as  much  expedition  as  possible.  The  apology 
that  was  made,  was  only  to  Dr.  Elliott.  He  was  told  that  no  personal 
attack  upon  himself  was  intended,  by  the  motion  to  displace  him;  that  he 
was  attempting  a  mal-organization,  yet  that  he  might  believe  all  he  was 
doing  to  be  correct,  and  that  wc  did  not  wish  to  give  any  persona]  offence; 
that  we  were  aware  that  he  was  sustained  by  the  trustees,  but  hoped  that 
we  should  not  be  interrupted  if  we  should  attempt  to  organize  the  body 
in  the  way  which  we  considered  constitutional,  and  according  to  the 
views  of  legal  counsel  with  whom  we  had  advised;  that  our  object  was 
to  include  the  entire  body,  and  that  if  allowed  to  proceed  we  would  do 
every  thing  with  as  much  expedition  as  possible.    If  any  one  of  the  Old- 


454  PRESBYTERIAN  CHURCH  CASE. 

school  had  wished  to  debate,  his  rising  to  do  so  would  have  been  con- 
sidered a  waver  of  all  objection  to  our  proceedings,  on  the  part  of  the 
trustees;  and  he  would  have  been  allowed  to  discuss  the  question  as 
long  as  he  pleased.  In  every  assembly,  when  it  is  supposed  there  is  no 
intention  to  debate  a  question,  it  is  put  immediately;  but  after  a  resolu- 
tion is  carried,  no  member  can  say  that  it  was  all  wrong,  because  he 
wanted  to  debate,  and  no  opportunity  was  given.  He  ought  to  have 
risen  and  said  that  he  wished  to  discuss  the  question,  and  thus,  if  the 
right  had  been  denied  him,  he  might  with  propriety  complain.  Did  any 
person  in  this  case  offer  to  debate?  Among  all  those,  on  the  list  of  Old- 
school  witnesses,  which  was  so  long  that  we  grew  sick  of  the  repetition, 
and  refrained  even  from  cross  examining  them — among  all  of  them  was 
there  one  who  said  that  he  had  wished  to  debate,  but  had  been  prevented? 
Not  one.  Yet,  now,  at  this  late  hour,  it  is  urged  that  our  proceedings 
ought  to  be  considered  void,  because  these  gentlemen  had  not  an  oppor- 
tunity for  debate,  though  they  did  not  demand  it  at  the  time,  and  though 
the  resolutions  of  the  trustees  put  into  our  hands  forced  us  either  to  pro- 
ceed expeditiously,  or  submit  to  their  dictation  of  an  unlawful  mode  of 
organization  under  the  old  officers! 

Next,  it  is  objected,  that  when  Dr.  Fisher  was  appointed  Moderator, 
the  rules  of  the  house  were  not  read  to  him.  You  recollect  what  was 
done.  Dr.  Beman  stated  to  him  that  he  had  been  elected  Moderator,  and 
must  observe  the  rules  thereafter  to  be  adopted  by  the  General  Assem- 
bly. I  beg  that  you  will  here  attend  to  one  thing  which  is  of  some 
importance.  Formerly  it  was  not  the  practice  to  re-adopt  the  rules  at 
each  session  of  the  Assembly,  but  they  were  considered  permanent. 
When  they  were  so  considered,  there  was  of  course  some  propriety  in 
the  regulation,  that  they  should  be  read  to  the  Moderator  on  his  election, 
or  rather,  through  the  Moderator,  should  be  read  to  the  house.  In  this 
proceeding  there  was  then  real  good  sense.  The  rules  were  thus  indi- 
rectly made  known  to  the  Assembly,  which  was  composed  of  members 
coming  up  with  new  commissions,  man}'-  of  whom  had,  perhaps,  never 
before  sat  in  the  bod)'^.  The  propriety  of  such  a  regulation  we  can  easily 
understand.  But  now  a  compliance  with  the  old  practice  seems  a  little 
like  nonsense;  for  the  rules  are  no  longer  permanent,  but  each  Assembly 
adopts  its  own.  If  therefore  they  are  read  to  the  new  Moderator,  they 
must  be  read  before  they  have  been  adopted.  It  seems  that  the  change 
of  which  I  speak,  was  made  on  the  suggestion  of  Mr.  Breckinridge, 
when  he  was  first  a.  member  of  the  body.  There  was  then  a  perfect  pro- 
priety in  the  language  addressed  by  Dr.  Beman  to  Dr.  Fisher — that  he 
should  observe  the  rules  thereafter  to  be  adopted  by  the  General  Assem- 
bly. That  was  not  the  proper  time  to  read  the  rules;  when  adopted  they 
might  properly  be  read.  But  it  is  idle  to  waste  time  in  the  refutation  of 
such  frivolous  objections.  What  difference  does  it  make  whether  the  rules 
were  read  or  not;  whether  the  right  Moderator  was  or  was  not  at  first 
selected;  whether  there  was  some  noise  made  by  this,  that  or  the  other 
person;  or  whether  some  were  standing  who  ought  to  have  been  sitting. 
Suppose  the  rule  had  been  that  every  body  ought  to  rise,  and  some  had 
been  found  sitting;  that,  though  a  disorder,  would  be  no  objection  to  the 
validity  of  resolutions  regularly  put  and  carried.  Is  an  organization 
otherwise  lawful  to  be  vitiated  by  these  petty  irregularities? 


MR.  WOOD'S  ARGUMENT.  455 

The  next  objection,  and  the  last  that  I  shall  trouble  yon  to  notice,  is 
that  the  several  motions  were  not  put  in  an  audible  manner,  so  that  they 
could  be  heard,  and  that  the  members  could  vote  understandingly.  My 
first  proposition  on  this  branch  of  the  subject  is,  that  they  were  all  put 
and  reversed  in  a'  loud  distinct  voice,  which  could  be  heard  over  the 
whole  house.  To  this  eflect  we  have  the  testimony  of  a  dozen  wit- 
nesses at  least,  though  I  shall  now  refer  to  that  of  only  two,  Dr.  Patton, 
and  Mr.  Gilbert.  To  the  evidence  given  by  Mr.  Norris,  the  Episcopa- 
lian, I  shall  refer  by-and-by.  How  the  opposite  counsel  came  to  catch 
an  Episcopalian,  I  don't  know.  The  testimony  of  their  Old-school  wit- 
nesses suits  them  very  well;  but  the  moment  they  get  hold  of  an  Epis- 
copalian, every  thing  goes  wrong.  He  stood  in  the  west  door;  it  is 
rather  a  small  church,  for  a  city,  but  between  Mr.  Norris  and  the  Mode- 
rator, you  will  recollect,  there  was  a  large  stove.  Not  one  of  the  wit- 
nesses has  denied  the  fact  that  the  questions  were  put  in  a  loud  and  dis- 
tinct voice:  all  of  ours  tell  you  that  they  could  be  heard  throughout  the 
house.  The  members  who  put  them  stood  about  the  middle  of  the 
building,  and  that  they  could  be  distinctly  heard  in  every  part  of  it,  is 
proved  conclusively,  when  we  bring  witnesses  who  stood  in  every  part, 
and  swear  that  they  all  heard  them.  Such  testimony  at  once  puts  an  end 
to  the  question.  1  will  call  your  attention  to  the  respective  positions  of 
some  of  the  witnesses.  Mr.  Gilbert,  afterwards  appointed  clerk,  who 
was  in  the  south-east  corner,  when  Mr.  Cleaveland  put  the  question  on 
his  first  motion,  says  that  he  heard  it  distinctly  put,  voted  upon,  and 
carried.  He  heard  every  thing  that  Mr.  Cleaveland  said,  and  has  re- 
peated the  substance  of  his  remarks.  He  was  in  the  south-east  corner, 
among  the  Old-school.  Mr.  Elmes  was  standing  in  the  south-west  part 
of  the  house.  He,  as  long  as  he  attended,  heard  what  was  said,  and  also 
testifies  that  the  questions  were  put  audibly  and  distinctly.  Mr.  Gem- 
mel — he  was  standing  in  the  same  neighbourhood,  by  one  of  the  side 
pews,  which  was  filled  with  brethren  of  the  Old-school.  He  too  says, 
that  the  questions  were  audibly  put;  and  also  that  the  Old-school  brethren 
in  the  pew  at  his  side,  were  scraping  and  stamping,  and  crying  "  Order!" 
so  loudly,  that  he  told  them,  that  was  singular  conduct  for  ministers  of 
the  Gospel.  His  testimony  is  unimpeached,  and  though  Dr.  Phillips 
swears  that  he  heard  no  such  disturbance,  that  is  not  enough  to  overcome 
the  evidence  of  this  positive  witness.  The  fact  is  established  beyond  the 
possibility  of  doubt.  Then  there  is  the  testimony  of  Dr.  Mason,  who 
was  nearer.  He  tells  us  that  there  were  two  pews  of  Old-school  brethren 
between  him  and  Mr.  Cleaveland.  Mr.  Norris  stood,  as  I  have  already 
mentioned,  in  the  west  door.  Mr.  Dingee  was  in  the  gallery,  by  the 
organ;  and  he  tells  us,  that  he  heard  every  thing  distinctly  until  the 
motion  was  made  that  Dr.  Fisher  should  be  Moderator:  that  he  did  not 
hear  that  motion,  because,  at  the  moment,  he  was  coming  down  from  the 
gallery.  Now  if  witness  after  witness  thus  testifies  that  the  questions 
were  put  distinctly,  and  so  as  to  be  heard  over  the  whole  house;  and 
then  others  standing  in  the  extreme  parts  of  the  house — north,  south, 
east,  and  west,  swear  that  they  actually  did  hear  them,  the  fact  that  they 
were  audibly  and  distinctly  put  is  established,  and  confirmed  by  the  tes- 
timony of  those  who  actually  heard. 

But  we  are  now  brought  to  the  inquiry,  could  the  various  questions  be 


456  PRESBYTERIAN  CHURCH  CASE. 

heard  by  the  Old-school?  We  have  called  witnesses,  who  have  proved, 
that  there  was  a  great  noise  in  the  part  of  the  house  which  the  Old- 
school  occupied;  that  there  were  hissing,  coughing,  scraping,  and  calls  to 
order.  The  Moderator  rapped  with  his  hammer,  and  some  cried 
"  Shame!  shame!"  One  gentleman  asked,  "Can  nothing  be  done  to  stop 
them?"  The  Moderator  answered,  "I  have  done  every  thing  I  could, 
but  cannot  stop  them."  All  this  is  proved  by  the  most  respectable  wit- 
nesses— by  Dr.  Patton,  Dr.  Fisher,  and  others  on  our  side,  and  by  a  num- 
ber of  their  own  party.  Mr.  Lowrie  says  there  was  no  legislative  cough- 
ing; but  there  was  scraping:  that  has  been  proved,  and  cannot  be  dis- 
proved. I  don't  pretend  to  blame  Dr.  PhiHips,  or  to  question  his 
veracity.  It  was  the  most  natural  thing  in  the  world  that  he  should  not 
hear  the  scraping.  He  has  told  us  that  he  was  very  much  agitated,  and 
found  himself  involuntarily  calling  "Order!  order!"  in  an  under  tone. 
Now  is  such  evidence  to  overcome  the  positive  testimony  of  a  witness 
who  did  hear  the  scraping  distinctly?  The  Old-school  not  only  made  a 
noise,  but  also  undertook  to  transact  business  during  the  progress  of  our 
organization.     What  says  their  Minute  of  the  transaction. 

"  Mr.  Cleaveland  then  rose,  and  began  to  read  a  paper,  the  purport  of 
which  was  not  heard,  when  the  Moderator  called  him  to  order.  Mr. 
Cleaveland,  however,  notwithstanding  the  call  to  order  was  repeated  by 
the  Moderator,  persisted  in  the  reading;  during  which,  the  Rev.  Joshua 
Moore,  from  the  Presbytery  of  Huntingdon,  presented  a  commission, 
which,  being  examined  by  the  Committee  of  Commissions,  Mr.  Moore 
was  enrolled,  and  took  his  seat." — Now,  it  is  true,  that  the  testimony  of 
Mr.  Krebs  differs  from  this,  as  to  the  time  when  Mr.  Moore's  commis- 
mission  was  presented;  but,  you  will  recollect,  that  this  minute  was  drawn 
up  at  the  time,  and  that  Dr.  Elliott  was  one  of  the  committee  appointed 
for  that  purpose.  He  says  that  the  minute  is  entirely  correct,  so  far  as  it 
goes.  Then,  there  was  another  piece  of  business  offered: — "  It  was  then 
moved  to  appoint  a  Committee  of  Elections,  to  which  the  informal  com- 
missions might  be  referred." — Not  those  which  Dr.  Mason  had  presented, 
but  the  informal  commissions  reported  by  the  clerks.  This  was  all  during 
the  time  that  Mr.  Cleaveland  was  on  the  floor. — "  But  the  reading  by  Mr. 
Cleaveland  still  continuing,  and  the  Moderator  having  in  vain  again  called 
to  order,  took  his  seat,  &c."  And  not  only  did  the  Old-school  commis- 
sioners thus  act,  but  even  Dr.  Miller,  a  man  distinguished  for  amability 
and  politeness,  was  carried  so  far  beyond  himself,  by  the  spirit  that  pre- 
vailed around  him,  that  he  rose  on  the  floor,  though  not  a  member  of  the 
body,  and  cried,  "What  a  disgraceful  scene!"  Look  for  one  moment  at 
the  mere  business  that  was  carried  on,  and  you  have  at  once  ample  means 
for  accounting  for  the  fact,  that  the  Old-school  did  not  hear  the  ques- 
tions put,  without  supposing  that  they  were  not  put  in  an  audible  voice, 
or  that  there  was  so  much  noise  in  the  gallery,  as  to  prevent  their  hear- 
ing. This  business  seems  to  have  been  twice  interrupted  by  Mr.  Breck- 
inridge. Once  he  called  upon  the  Moderator  to  stop  the  proceedings  of 
the  New-school;  and  then,  when  the  Moderator  replied,  that  he  had  done 
all  he  could  to  stop  them,  said:  "  Oh,  let  them  go  on."  Dr.  Miller  cried, 
"What  a  disgraceful  scene!"  Another  person,  "  Shame!  shame!"  In 
the  meantime,  the  hammer  of  the  Moderator  was  continually  in  motion, 
and  he  called  loudly,  "  Order!"     All  this  was  to  prevent  the  progress  of 


MR.  WOOD'S  ARGUMENT. 


457 


our  organization.  One  member  of  the  Old-school  party,  endeavoured  to 
cast  reproach  on  the  whole  proceeding,  by  repeating  the  pagan  maxim — 
"  Whom  God  wishes  to  destroy,  he  first  makes  mad."  This  heathen 
maxim  he  applies  to  his  brethren,  while  they  are  making  an  effort  to 
address  the  house,  oh  subjects  of  the  deepest  interest  to  all  present.  What 
was  Mr.  Cleaveland's  object?  To  create  a  disorder?  No;  he  was  as 
pacific  and  courteous  as  possible.  He  explained  fully  his  intention,  hoping 
that  he  might  be  allowed  to  accomplish  what  he  desired,  as  he  meant  no 
discourtesy  to  any  one.  He  begged  that  the  Moderator  would  not  con- 
sider him  wanting  in  courtesy,  and  that  the  trustees  would  not  interfere, 
promising  that  there  should  be  as  little  delay  as  possible.  And  this  expla- 
nation was  an  apology  for  endeavouring  to  bring  into  the  Assembly  the 
representatives  of  five  hundred  ministers,  fifty  thousand  communicants, 
"and  two  hundred  thousand  stated  worshippers,  that  they  might  then  and 
there  exercise  the  rights  secured  to  them  by  the  law  of  the  land,  as  he 
had  been  advised  to  do  by  their  legal  counsel.  It  was  to  men  such  as  this, 
that  the  gentleman  to  whom  I  have  referred,  applied  this  pagan  maxim. 
He  meant  to  say,  "  Your  God  has  determined  to  destroy  you,  and  there- 
fore has  made  you  mad."  To  whom  did  he  apply  it?  To  pagans,  or 
infidels?  No,  but  to  his  brethren;  those  with  whom  he  had  sat  and  deli- 
berated; those  with  whom  he  had  worshipped,  day  after  day,  the  God 
whose  vengeance  he  was  thus  invoking  upon  their  heads.  Yet  now,  these 
gentlemen,  with  such  language  in  their  mouths,  and  after  making  such 
efforts  to  interrupt  and  hinder  our  proceedings,  tell  us  that  those  proceed- 
ings were  all  wrong,  because  they  couldn't  hear  the  questions! 

But  there  was  another  reason  why  they  did  not  hear:  they  didn't  want 
to  hear;  and  they  didn't  mean  to  vote  if  they  did  hear.  You  all  know 
the  old  saying,  "  There  are  none  so  blind  as  those  who  don't  choose  to 
see."  You  may  also  say,  "There  are  none  so  deaf  as  those  who  don't 
choose  to  hear."  Now  we  have  Dr.  Wilson,  Mr.  Mitchell,  Mr. 
Breckinridge,  and  the  Moderator,  all  testifying  that  they  didn't  try  to 
hear,  and  should  not  have  voted  if  they  had  heard.  There  is  not  a  single 
witness  of  that  school  who  has  said  that  he  would  have  voted  or  debated, 
if  he  had  had  an  opportunity.  There  is  no  difficult)',  gentlemen,  in 
arranging  and  explaining  the  whole  of  this  evidence.  Why  did  not  any 
of  the  Old-school  hear,  while  all  on  our  side  heard  distinctly?  I  shall  not 
impeach  the  credit  or  the  character  of  a  single  witness:  it  is  only  neces- 
sary to  look  at  the  different  states  of  mind  in  which  the  two  parties  were, 
and  the  whole  difficulty  is  removed.  The  Old-school  looked  at  our  pro- 
ceedings as  a  disorder.  They  were  acting  out  the  measures  of  18.37,  and 
thought  that  we  had  no  right  to  interrupt  them,  and  displace  their 
Moderator;  that  we  were  creating  an  unlawful  disturbance.  What  was 
more  natural  than  that  each  party  should  attend  to  the  things  they  were 
themselves  doing?  Here  our  opponents  imagined  that  we  were  disor- 
derly. They  had  no  idea  that  the  Moderator  could  be  displaced;  and 
their  attention  was  naturally  called  to  that  part  of  the  house  where  cer- 
tain members  of  their  own  party  were  pretending  to  carry  on  some  sort 
of  business — the  appointment  of  a  Committee  of  Elections.  How  was  it 
with  the  witnesses  on  the  other  side?  Their  attention  also  was  directed 
by  their  sympathies:  they  wanted  to  hear,  and  they  did  hear.  Go  into 
any  Assembly,  where  one  set  of  men  are  conducting  one  piece  of  busi- 

58 


458  PRESBYTERIAN  CHURCH  CASE. 

ness  in  this  part  of  the  house,  and  another  set  another  piece  in  that:  if 
you  attend  to  the  latter,  you  will  not  be  able  to  hear  the  former.  This 
accounts  for  the  apparent  discrepancies  in  the  testimony,  without  our 
imputing  a  want  of  veracity  to  the  witnesses  on  either  side.  The  Old- 
school  did  not  hear  because  they  not  only  did  not  want  to  hear,  but  were 
occupied  with  other  business.  The  New-school  listened — they  could  and 
did  hear;  and  their  witnesses  all  say  that  the  questions  were  put  in  a 
distinct  and  audible  voice.  Now,  there  can  be  no  pretence  that  the  New- 
school  were  disorderly.  No  witness  has  said  that  they  were.  All  that 
they  did — all  that  it  is  pretended  they  did,  which  could  be  considered  in 
the  least  objectionable,  was  to  vote  in  a  very  hearty  and  emphatic  manner, 
and  to  rise,  as  a  few  persons  did,  in  their  seats,  when  the  first  motion 
was  made.  No  one  pretends  that  there  was  any  disorder  beyond  what  I 
have  mentioned.  Take  the  testimony  of  one  of  the  witnesses  for  the 
defence.  Professor  Maclean.  He  tells  you  that  there  was  no  disorder 
among  the  New-school.  The  most  of  those  that  were  particularly  attend- 
ing to  their  proceedings  at  the  time,  allege  that  there  was  not  the  least 
noise  or  disturbance.  And  there  seems  to  have  been  none  even  in  the 
galleries,  except  that  some  think  that  they  saw  a  few  clapping  their  hands, 
though  they  heard  no  sound.  One  of  the  witnesses,  indeed,  says  that  he 
was  led  to  believe  that  the  loud  shrieking  aye,  which  several  of  the  Old- 
school  have  mentioned,  came  from  the  gallery.  I  understood  Mr.  Mac- 
lean to  testify,  that  there  was  as  little  disorder  as  possible;  as  little  as 
could  have  been  expected  under  such  circumstances.  He  thought,  it  is 
true,  that  the  New-school  were  disorderly  ;  but  this  disorder  was  the  dis- 
placing the  old  Moderator  in  the  way  they  did.  Now  suppose  they 
were  disorderly  to  the  full  extent  to  which  they  have  been  ever  charged 
with  disorder — why  from  the  very  circumstances  of  the  case  we  might 
find  an  apology  for  them.  They  had  demanded  their  seats,  but  the 
Moderator  had  refused  to  entertain  any  motion  on  the  subject,  or  to  put 
the  question  on  an  appeal.  What  then  was  left  for  them?  Nothing  but 
to  take  the  other  end  of  the  church,  and  there  put  the  question,  remark- 
ing, as  Mr.  Cleaveland  did,  by  way  of  explanation,  that  they  desired  to 
secure  their  object  with  as  little  disturbance  as  possible,  and  that  they 
hoped  their  proceedings  would  not  be  considered  discourteous.  Now,  if 
according  to  the  principles  laid  down  in  the  New  York  case,  they  had  a 
right  to  retire  and  organize  the  Assembly  in  the  street,  I  think  you  will 
say  with  no  hesitation,  that  being  prevented  from  remaining  in  the  house 
by  the  resolution  of  the  trustees  put  into  their  hands,  and  compelled  to 
organize  themselves  at  that  time  and  in  that  manner,  by  the  conduct  of  the 
old  Moderator,  much  allowance  must  be  m.ade  for  them,  and  that  theirs 
was  the  lawful  organization.  Suppose  some  did  try  to  hear  and  could  not; 
would  that  vitiate  all  the  proceedings?  Why  I  venture  to  say,  that  during 
the  last  sitting  of  the  House  of  Representatives,  nine-tenths  of  the  business 
was  transacted  when,  by  reason  of  the  conversation  that  was  going  on 
around  them,  a  portion  of  the  members  did  not  hear.  I  think  our  oppo- 
nents will  agree  with  me  in  this  belief.  But  did  that  vitiate  the  proceed- 
ings of  the  house?  Certainly  not.  When  during  the  transaction  of  busi- 
ness, any  one  is  prevented  from  hearing  by  the  conversation  in  his  neigh- 
bourhood, he  must  call  upon  those  who  are  making  the  disturbance  to  be 
silent,  if  he  wants  to  hear,  to  debate,  and  to  vote.     If  then  the  gentlemen 


MR.  WOOD'S  ARGUMENT.  459 

of  the  Old-school  wished  to  hear,  debate  and  vote,  instead  of  attempting 
to  put  down  Mr.  Cleaveland,  Dr.  Beman,  and  Dr.  Fisher,  they  should 
have  endeavoured  to  hear,  and  should  have  claimed  the  privilege  of 
having  opportunity  to  act.  If  this  had  been  denied  them,  there  might 
now  be  some  reason  for  the  objection  urged;  but  they  did  not  make  the 
demand,  and  therefore  cannot  say  that  our  proceedings  were  unlawful 
and  void,  because  the  opportunity  was  not  granted. 

Gentlemen,  I  shall  bring  my  argument  to  a  close,  after  a  single  word 
in  reply  to  the  remarks  made  in  regard  to  the  other  suits  that  have  been 
commenced,  which  it  is  said  ought  to  have  been  tried  instead  of  this. 
Those  are  but  private  suits,  and  if  individuals  who  felt  themselves  aggriev- 
ed, have  brought  them,  to  recover  their  individual  rights,  we  have  noth- 
ing to  do  with  that.  This  proceeding  involves  directly  the  great  ques- 
*tion  on  which  depends  the  settlement  of  the  entire  controversy.  We  go 
for  the  whole  matter  in  dispute:  we  say  that  we  are  the  true  and  consti- 
tutional General  Assembly  of  the  Presbyterian  Church  in  the  United 
States — the  Church  as  it  existed  at  the  commencement  of  the  session  of 
the  Assembly  of  1837.  We  organized  ourselves  in  1S3S  upon  that  prin- 
ciple. Now  the  question  for  you  to  decide  is,  whether  the  whole  Church, 
such  as  it  was  at  the  commencement  of  the  session  of  1837,  and  every 
part  of  it,  are  still  entitled  to  the  right  of  being  fully  represented  in  the 
Assembly.  The  other  side  contend  that  they  are  not;  that  the  inhabi- 
tants of  a  certain  large  district  do  not  belong  to  the  United  States  at  all, 
so  far  forth  as  Presbyterianism  is  concerned.  That  great  question  could 
be  tried  only  in  this  way.  Was  the  appointment  of  trustees,  by  a  body 
purporting  to  be  composed  of  the  commissioners  to  the  Assembly  from 
the  entire  Church — the  Church  such  as  it  was  in  1835,  '36,  and  until  a 
certain  period  of  the  sessions  of  the  Asseml)ly  of  1837,  valid;  or  was  it 
invalid,  and  were  those  parts  of  the  Church  exscinded  in  1837  lawfully 
cut  off?  This  suit,  I  say,  embraces  the  entire  question.  Suppose  one  of 
those  instituted  by  an  individual  had  been  tried — then  the  same  cry  would 
have  been  raised — why  did  we  not  bring  up  the  entire  subject,  the  whole 
question,  at  once?  One  of  the  counsel  has  told  us  that  a  mandamus  might 
have  been  issued,  or  an  action  of  trover  commenced — that  either  of  these 
would  have  been  sufficient  to  decide  the  matter.  I  should  like  him  to  tell 
me  how  an  action  of  trover  could  lie  in  this  case.  I  believe  it  could  not. 
A  mandamus  might  indeed  be  issued,  but  it  could  not  have  restored  these 
members  the  year  they  were  excluded:  before  the  question  could  be  deter- 
mined, the  Assembly  would  have  been  dissolved,  and  a  new  one  called; 
and  it  does  not  appear  that  the  same  men  were  elected  as  commissioners 
to  the  Assembly  of  1838.  What  then  could  a  mandamus  do?  In  the 
case  of  any  office  of  such  a  short  duration,  a  mandamus  cannot  reach 
the  difficulty.  Our  only  effectual  remedy  was  the  organization  of  a  law- 
ful Assembly,  and  the  appointment  of  the  relators  as  trustees.  We  in- 
tended no  personal  injury  to  Dr.  Green,  though  his  personal  claims  have 
been  so  largely  brought  before  you.  Those  claims  certainly  ought  not  to 
be  allowed  to  make  any  impression  upon  your  feelings.  This  is  the  whole 
question — and  you  ought  to  keep  it  distinctly  in  view:  Is  the  true  Gene- 
ral Assembly  composed  of  delegates  from  the  entire  Cliurch,  as  it  stood 
before  the  excision,  or  of  delegates  from  those  parts  of  it  only,  which  the 
Old-school  choose  to  consider  in  connexion  with  them?    If  we  are  right, 


460 


PRESBYTERIAN  CHURCH  CASE. 


the  organization  brings  in  all  parties.  It  leaves  the  Old-school  just  where 
they  stood  before — Dr.  Green  just  where  he  stood — all  of  them  secure  in 
their  ecclesiastical  rights,  as  members  of  their  respective  judicatories,  and 
as  entitled  to  a  representation  in  the  Assembly.  In  the  temporal  office 
of  which  Dr.  Green  will  in  that  case  be  deprived,  there  is  nothing,  which, 
if  indeed  it  might  not  better  be  committed  to  lay  hand,  he,  at  least,  can 
covet,  at  his  advanced  period  of  life.  But  our  organization  brings  both 
him  and  Dr.  Barnes  into  the  same  situation  as  before  the  excision.  I 
desire  that  this  great  question  should  now  be  settled,  that  we  may  see 
whether  these  inferior  and  subordinate  institutions,  civil  or  ecclesiastical, 
may  wantonly  trample  under  foot  the  most  sacred  rights — whether  one 
portion  of  the  members  of  such  an  institution  may  exclude  another  por- 
tion— may  cut  oflf  their  brethren,  and  strip  them  of  their  dearest  privi- 
leges, without  notice,  and  without  a  hearing.  And  when  I  remember 
that  I  stand  in  the  State  of  Pennsylvania,  the  citizens  of  which  are  dis- 
tinguished by  their  respect  for  good  order,  while  its  laws  are  wise  and 
equitable;  when  I  know  that  I  address  an  impartial  and  intelligent  jury, 
a  judge  learned  in  the  law,  and  firm  to  apply  its  principles,  I  can  have  no 
hesitation  as  to  the  character  of  your  decision. 

On  the  conclusion  of  Mr.  Wood's  argument,  the  usual  time  for  the 
court  to  adjourn  not  having  arrived,  Judge  Rogers  signified  his  readiness 
to  charge  the  jury  immediately.  One  of  the  jurymen,  however,  being 
anxious  to  go  home,  on  account  of  the  sickness  of  a  member  of  his  family, 
his  Honour  consented  to  an  adjournment,  and  announced  that  he  would 
deliver  the  charge  next  morning. 

Court  adjourned. 


461 


TUESDAY  MORNING,  March  26th.— 10  o'clock. 
JUDGE  ROGERS'  CHARGE. 

In  the  course  of  my  remarks,  gentlemen,  so  far  as  lies  in  my  power,  I 
shall  instruct  you  positively,  clearly,  and  directly,  upon  the  different 
points  of  law  involved  in  this  case.  My  observations  will  be  brief,  and 
discarding  all  collateral  matter,  I  shall  direct  3'our  attention  to  the  very 
points  which  I  think  material.  If  I  err  in  my  instructions  to  you,  by  a 
"resort  to  a  higher  tribunal,  the  error  may  be  corrected.  I  now  request 
your  careful  attention. 

Before  the  year  1758,  the  Presbyterian  Churches  in  this  country,  were 
under  the  care  of  two  separate  Synods,  and  their  respective  Presbyteries: 
the  Synod  of  New  York  and  the  Synod  of  Philadelphia. 

In  the  year  1758,  these  Synods  were  united,  and  were  called  the  "  Sy- 
nod of  New  York  and  Philadelphia."  This  continued  until  the  year 
1788,  when  the  General  Assembly  was  formed.  The  Synod  was  then 
divided  into  four  Synods,  the  Synods  of  New  York  and  New  Jersey, 
Philadelphia,  Virginia,  and  the  Carolinas;  of  these  four  Synods  the 
General  Assembly  was  constituted. 

In  1803  the  Synod  of  Albany  was  erected.  This  Synod  has  been  from 
time  to  time  sub-divided,  and  the  Synods  of  Genesee,  Geneva,  and  Utica, 
have  been  formed. 

The  Synod  of  Pittsburg  has  been  also  erected,  out  of  which  the  Synod 
of  the  Western  Reserve  has  been  formed. 

These  constitute  the  four  exscinded  Synods,  viz.,  the  Synods  of  Gene- 
see, Geneva,  Utica,  and  the  Western  Reserve. 

The  General  Assembly  was  constituted  by  every  Presbytery  at  their 
last  stated  meeting,  preceding  the  meeting  of  the  General  Assembly, 
deputing  to  the  General  Assembly  commissioners  in  certain  specific  pro- 
portions. 

The  Westminster  Confession  of  Faith  is  part  of  the  constitution  of  the 
Church.  The  constitution  could  not  be  altered,  unless  two-thirds  of  the 
Presbyteries  under  the  care  of  the  General  Assembly,  prepared  alterations 
or  amendments,  and  such  alterations  or  amendments  were  agreed  to  by 
the  General  Assembly. 

The  form  of  government  was  amended  in  1821.  The  General  Assem- 
bly now  consists  of  an  "  equal  delegation  of  bishops  and  elders  from  each 
Presbytery  in  certain  proportions." 

The  judicatories  of  the  Church  consist  of  the  Session,  of  the  Presbyte- 
ries, of  Synods,  and  the  General  Assembly. 

The  church-session  consists  of  the  pastor,  or  pastors,  and  ruling  elders 
of  a  particular  congregation.  A  Presbytery,  of  all  the  ministers  and  one 
ruling  elder  from  each  congregation  within  a  certain  district.  A  Synod 
is  a  convention  of  bishops  and  elders,  including  at  least  three  Presbyte- 
ries. And  the  General  Assembly,  of  an  equal  delegation  of  bishops  and 
elders,  from  each   Presbytery,  in  the   following  proportions,   viz.   each 


462 


PRESBYTERIAN  CHURCH  CASE. 


Presbytery  consisting  of  not  more  than  twenty-four  ministers,  sends  one 
minister  and  one  elder;  and  each  Presbytery  consisting  of  more  than 
twenty-four  ministers,  sends  tv^'o  ministers  and  two  elders;  and  in  the 
like  proportion  for  every  twenty-four  ministers  in  any  Presbytery.  The 
delegates  so  appointed  are  styled  commissioners  to  the  General  Assembly. 

The  General  Assembly  is  the  highest  judicatory  of  the  Presbyterian 
Church.  It  represents,  in  one  body,  all  the  particular  churches  of  this 
denomination  of  Christians. 

In  relation  to  this  body,  the  most  important  undoubtedly  are  the  va- 
rious Presbyteries;  for,  as  was  before  said,  the  General  Assembly  con- 
sists of  an  equal  delegation  of  bishops  and  elders  from  each  of  the  Pres- 
byteries. If  the  Presbyteries  are  destroyed,  the  General  Assembly  falls, 
as  a  matter  of  course,  as  there  would  no  longer  be  any  constituent  bodies 
in  existence,  from  which  delegates  could  be  sent  to  the  General  Assembly. 

The  Presbyteries  are  essential  features  in  the  form  of  government  in 
another  particular,  for  before  any  overtures  or  regulations  proposed  by 
the  General  Assembly,  to  be  established  as  constitutional  rules,  can  be 
obligatory  on  the  churches,  it  is  necessary  to  transmit  them  to  all  the 
Presbyteries,  and  to  receive  the  returns  of  at  least  a  majority  of  them  in 
writing,  approving  thereof. 

A  Synod,  as  has  been  before  observed,  is  a  convention  of  bishops  and 
elders  within  a  district,  including  at  least  three  Presbyteries.  The  Synods 
have  a  supervisory  power  over  Presbyteries,  but  unlike  Presbyteries,  as 
such  they  are  not  essential  to  the  existence  of  the  General  Assembly.  If 
every  Synod  in  the  United  States  were  exscinded  and  destroyed,  still  the 
General  Assembly  would  remain  as  the  highest  tribunal  in  the  Church. 
In  this  particular  there  is  a  vital  difference  between  Presbyteries  and 
Synods.  The  only  connexion  between  the  General  Assembly  and  the 
Synods  is,  that  the  former  has  a  supervisory  power  over  the  latter. 

Having  thus  given  you  an  account  of  such  parts  of  the  Form  of  Church 
government  as  may,  in  some  aspects  of  the  cause,  be  material,  I  shall  now 
call  your  attention  to  the  matter  in  issue. 

This  proceeding  is  what  is  called  a  ^' Quo  Warranto.^'  It  is  issued 
by  the  Commonwealth,  at  the  suggestion  of  James  Todd  and  others, 
against  Ashbel  Green  and  others,  to  show  by  what  authority  they 
claim  to  exercise  the  office  of  Trustees  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America.  I  must  here  re- 
mark, that  it  is  not  only  an  appropriate,  but  the  best  method  of  trying  the 
issue  in  this  cause. 

It  is  admitted,  that  until  the  24th  of  May,  1838,  the  respondents  were 
the  rightful  trustees;  but  it  is  contended  by  the  relators,  that  on  that  day, 
the  24th  of  May,  1838,  in  pursuance  of  the  act  of  incorporation,  the 
General  Assembly  of  the  Presbyterian  Church  changed  one  third  of  the 
trustees,  by  the  election  of  the  relators  in  the  place  and  stead  of  the 
respondents. 

The  28th  March,  1799,  the  Legislature  of  Pennsylvania  declared 
Ashbel  Green  and  seventeen  others,  (naming  them,)  a  body  politic,  and 
corporate,  by  the  name  and  style  of  Trustees  of  the  General  Assembly  of 
the  Presbyterian  Church  in  the  United  States  of  America. 

The  sixth  section  provides  that  the  corporation  shall  not,  at  any  time, 
consist  of  more  than  eighteen  persons;  whereof,  the  General  Assembly 


JUDGE  ROGERS'  CHARGE.  4(53 

may,  at  their  discretion,  as  often  as  they  shall  hold  their  sessions  in  the 
State  of  Pennsylvania,  change  one  third  in  such  a  manner  as  to  the 
General  Assembly  may  seem  proper. 

It  was  the  intention  of  the  Legislature,  by  the  act  of  incorporation,  to 
provide  for  the  election  of  competent  persons,  who,  as  an  incorporated 
body,  might  with  more  ease,  and  in  a  better  manner,  manage  the  tempo- 
ral aflairs  of  the  Church.  It  is  only  in  this  aspect  that  we  have  cogni- 
zance of  the  case. 

In  this  country,  for  the  mutual  advantage  of  church  and  state.  We  have 
wisely  separated  the  ecclesiastical  from  the  civil  power.  The  court  has 
as  little  inclination  as  authority  to  interfere  with  the  church  and  its 
government^  farther  than  may  be  necessary  for  its  protection  and  security. 
It  is  only  as  it  bears  upon  the  corporation,  which  is  the  creature  of  the 
civilpower,  that  we  have  any  right  to  determine  the  validity,  or  to  con- 
strue the  acts  and  resolutions  of  the  General  Assembly.  It  is,  however, 
sufficient  for  us,  gentlemen,  to  know  that  in  this  case  we  have  that  right. 

Although  neither  the  members  of  the  General  Assembly,  as  such,  nor 
the  General  Assembly  itself,  are  individually  or  aggregately  members  of 
the  corporation,  3^et  the  Assembly  has  power,  from  time  to  time,  as  they 
may  deem  proper,  to  change  the  trustees,  and  to  give  special  instructions 
for  their  government.  They  stand  in  the  relation  of  electors,  and  have 
been  properly  denominated  in  the  argument,  quasi  corporate.  The 
trustees  only  are  the  corporation  by  express  words  of  the  act  of  the 
Assembly. 

Unhappily,  differences  have  arisen  in  the  church,  (the  nature  of  which 
it  is  not  necessary  for  us  to  inquire  into,)  which  have  caused  a  division  of 
its  members  into  two  parties,  called  and  known  as  the  Old  and  New 
Schools.  These  appellations  we  may  adopt  for  the  sake  of  designating 
the  respective  parties,  the  existence  of  which  will  have  an  important 
bearing  on  som.e  of  the  questions  involved  in  this  important  cause.  It 
gives  a  key  to  conduct,  which  it  would  be  otherwise  difficult  to  explain. 

The  division  continued  to  increase  in  strength  and  virulence  until  the 
session  of  1837,  when  certain  decisive  measures,  which  will  be  hereafter 
stated,  were  taken  by  the  General  Assembly,  which  at  this  time  was 
under  the  control  of  members,  who  sympathize,  (as  the  phrase  is,)  with 
the  principles  of  the  Old-school. 

At  an  early  period  the  Presbyterian  Church,  at  their  own  suggestion, 
formed  unions  with  cognate  churches,  that  is,  with  churches  whose  faith, 
principles  and  practice,  assimilated  with  their  own,  and  between  whom 
there  was  thought  to  be  no  essential  difference  in  doctrine. 

On  this  principle  a  plan  of  union  and  correspondence  was  adopted  by 
the  Assembly  in  1792,  with  tlie  General  Association  of  Connecticut,  with 
Vermont  in  1803,  with  that  of  New  Hampshire  in  1810,  with  Massa- 
chusetts in  1811,  with  the  Northern  Associate  Presbytery  of  Albany  in 
1802,  and  with  the  Reformed  Dutch  Church,  and  the  Associate  Reformed 
Church  in  1798. 

These  conventions,  as  is  stated,  originated  in  measures  adopted  by  the 
General  Assembly  in  1790  and  1791.  The  delegates  from  each  of  the 
associated  churches  not  only  sat  and  deliberated  with  each  other,  but  also 
acted  and  voted  by  virtue  of  the  express  terms  of  the  union. 

In  further  pursuance  of  the  settled  policy  of  the  Church  to  extend  its 


464  PRESBYTERIAN  CHURCH  CASE. 

sphere  of  usefulness,  in  the  year  1801,  a  plan  of  union  between  the  Pres- 
byterians and  Congregationalists  was  formed. 

The  plan,  which  was  devised  by  the  fathers  of  the  Church,  to  prevent 
alienation  and  lo  promote  harmony,  was  observed  by  the  General  Assem- 
bly without  question  by  them,  until  the  year  1835,  a  period  of  thirty- 
four  years. 

At  that  time  it  was  resolved  by  the  General  Assembly,  that  they 
deemed  it  no  longer  desirable  that  churches  should  be  formed  in  their 
Presbyterian  connexion,  agreeably  to  the  plan  adopted  by  the  Assenibly 
and  the  General  Association  of  Connecticut,  in  1801.  They,  therefore, 
resolved  that  their  brethren  of  the  General  Association  of  Connecticut 
be,  and  they  hereby  are,  respectfully  requested  to  consent  that  the  said 
plan  shall  be,  from  and  after  the  next  meeting  of  that  Association, 
declared  to  be  annulled.  And  also  resolved  that  the  annulling  of  said 
plan  shall  not  in  any  wise  interfere  with  the  existence  and  lawful  associa- 
tion of  churches  which  have  been  already  formed  on  this  plan. 

To  this  resolution  no  reasonable  objection  can  be  made;  and  if  the  mat- 
ter had  been  permitted  to  rest  here,  we  should  not  have  been  troubled 
with  this  controversy.  It  had  not  then  occurred  to  the  Assembly,  that 
the  plan  of  union  was  unconstitutional.  The  resolutions  are  predicated  on 
the  belief  that  the  agreement  or  compact  was  constitutional.  They  request 
that  the  Association  of  Connecticut  would  consent  to  rescind  it.  It  does 
not  seem  to  have  been  thought  that  this  could  be  done  without  their  con- 
sent. And,  moreover,  the  resolution  expressly  saves  the  right  of  existing 
churches  which  had  been  formed  on  that  plan. 

I  must  be  permitted  to  regret,  for  the  sake  of  peace  and  harmony,  that 
this  business  was  not  suffered  to  rest  on  the  basis  of  resolutions  which 
breathe  the  spirit  of  peace  and  good  feeling.  But,  unfortunately,  the  Gene- 
ral Assembly,  in  1837,  which  was  then  under  another  influence,  took  a 
different  view  of  the  question. 

"As  the  'Plan  of  Union'  adopted  for  the  new  settlements,  in  1801, 
was  originally  an  unconstitutional  act  on  the  part  of  that  Assembly — 
these  important  standing  rules  having  never  been  submitted  to  the  Pres- 
byteries— and  as  they  were  totally  destitute  of  authority  as  proceeding 
from  the  General  Association  of  Connecticut,  which  is  invested  with  no 
power  to  legislate  in  such  cases,  and  especially  to  enact  laws  to  regulate 
churches  not  within  her  limits;  and  as  much  confusion  and  irregularity 
have  arisen  from  this  unnatural  and  unconstitutional  system  of  union, 
therefore  it  is  resolved,  that  the  Act  of  the  Assembly  of  1801,  entitled  a 
*  Plan  of  Union,'  be,  and  the  same  is  hereby  abrogated."  See  Digest,  pp. 
297-299. 

The  resolution  declares  the  Plan  of  Union  to  be  unconstitutional.  First, 
because  those  important  standing  rules,  as  they  call  them,  were  not  sub- 
mitted to  the  Presbyteries;  and,  secondly,  because  the  General  Associa- 
tion of  Connecticut  was  invested  with  no  power  to  legislate  in  such  cases, 
and  especially  to  enact  laws  to  regulate  churches  not  within  their  limits. 

The  Court  is  not  satisfied  with  the  force  of  these  reasons,  and  do  not 
think  the  agreement,  or  Plan  of  Union,  comes  within  the  words  or  spirit 
of  that  clause  in  the  constitution,  which  provides,  that  before  any  overtures 
or  regulations  proposed  by  the  General  Assembly  to  be  established  as  con- 
stitutional rules,  shall  be  obligatory  on  the  churches,  it  shall  be  necessary 


JUDGE  ROGERS'  CHARGE.  4(35 

to  transmit  them  to  all  the  Presbyteries,  and  to  receive  the  returns  of  at 
least  a  majority  of  them,  approving  thereof.  Nor  is  it,  in  the  opinion  of 
the  Court,"  in  conflict  with  the  constitution,  before  its  amendment  in  1821, 
which  provides  that  no  alteration  shall  be  made  in  the  Constitution,  unless 
two-thirds  of  the  Presbyteries  under  the  care  of  the  General  Assembly 
propose  alterations  or  amendments,  and  such  alterations  or  amendments 
are  agreed  to  by  the  Assembly. 

It  was  a  regulation  made  by  competent  parties,  and  not  intended  by 
either  as  a  constitutional  rule;  nor  was  it  obligatory  on  any  of  the  Pres- 
byterian churches  within  their  connexion.  Those  who  were  competent 
to  make  it,  were  competent  to  dissolve  it  without  the  assent  of  the  Pres- 
byteries, as  such,  which  could  not  be  done,  were  it  a  constitutional  rule, 
within  the  meaning  of  the  constitution.  Whether  one  party  may  dissolve 
it  without  the  consent  of  the  other,  it  might  be  unnecessary  to  decide. 
My  opinion  is,  that  they  can.  The  Plan  of  Union  is  intended  to  prevent 
alienation,  and  to  promote  union  and  harmony  in  the  new  settlements. 

It  is  not  a  union  of  the  Presbyterian  Church  with  a  Congregational 
church,  or  churches,  but  it  purports  to  be,  and  is,  a  Plan  of  Union  between 
individual  members  of  the  Presbyterian  and  Congregational  churches,  in 
that  portion  of  the  country  which  was  then  denominated  the  New  Settle- 
ments. It  is  advisory  and  recommendatory  in  its  character — has  nothing 
obligatory  about  it.  A  Congregational  church,  as  such,  is  not  by  force 
of  the  agreement  incorporated  with  the  Presbyterian  Church.  It  has  no 
necessary  connexion  with  it;  for  it  is  only  when  the  congregation  con- 
sists partly  of  those  who  hold  the  Congregational  form  of  discipline,  and 
partly  of  those  who  hold  the  Presbyterian  form,  and  there  is  an  appeal 
to  the  Presbytery,  (as  there  may  be  in  certain  cases)  that  the  Standing 
Committee  of  the  Congregational  church,  consisting  partly  of  Presbyte- 
rians and  partly  of  Congregationalists,  may,  or  shall  attend  the  Presby- 
tery, and  may  have  the  same  right  to  sit  and  act  in  the  Presbytery  as  a 
ruling  elder.  And,  whatever  may  have  been  occasionally  the  instances 
to  the  contrary,  this  I  conceive  to  be  the  obvious  construction  of  the  regu- 
lation. That  part  of  the  agreement  was  intended  as  a  safeguard,  or  pro- 
tection of  the  rights  of  alf  the  parties  to  be  affected  by  it,  without  any 
design  to  confer  upon  the  Standing  Committee  all  the  rights  of  a  ruling 
elder. 

I  view  it  as  a  matter  of  discipline,  and  not  of  doctrine,  the  effect  of 
which  is  to  exempt  those  members  of  the  different  communions,  who 
adopted  it,  from  the  censures  of  the  church  to  which  they  belong,  and 
particularly  the  clerical  portion  of  them. 

The  Court  is  also  of  the  opinion,  that  after  an  acquiescence  of  nearly 
forty  years,  and  particularly  after  the  adoption  by  the  Presbyteries,  of  the 
amended  constitution  of  1821,  the  Plan  of  Union  is  not  now  open  to 
objection.  The  plan  has  been  recognised  by  the  Presbyteries  at  various 
times,  and  in  different  manners,  under  the  old  and  amended  constitution. 
It  has  been  acted  on  by  them  and  the  General  Assembly  in  repeated 
instances,  and  is  equally  as  obligatory  as  if  it  had  received  the  express 
sanction  of  the  Presbyteries  in  all  the  forms  known  to  the  constitution. 

That  acquiescence  gives  right,  is  a  principle  which  we  must  admit. 
The  constitutionality  of  the  purchase  and  admission  of  Louisiana  as  a 
member  of  the  Union,  was  doubted   by  some  of  the   wisest  heads  and 

59 


466  PRESBYTERIAN  CHURCH  CASE. 

purest  hearts  m  the  country;  but  he  would  be  a  very  bold  man,  indeed, 
who  would  now  denj-  that  State,  and  Mississippi,  Arkansas,  and  Missouri, 
to  be  members  of  the  confederation.  In  the  memorable  struggle  for  the 
admission  of  Missouri  into  the  Union,  this  objection  was  never  taken. 

Nor  am  I  satisfied  with  the  second  reason,  that  the  General  Associa- 
tion of  Connecticut  was  invested  with  no  power  to  legislate  in  such  cases, 
and  especially  to  enact  laws  to  regulate  churches  not  within  their  limits. 
Although  the  General  Assembly  had  the  right  to  annul  the  Plan  of 
Union  without  the  Assent  of  the  General  Association  of  Connecticut, 
yet  I  must  be  permitted  to  say,  that  after  having  acted  on  the  Plan,  and 
reaped  all  the  advantages  of  it,  it  is  rather  discourteous,  to  say  the  least 
of  it,  to  attempt  to  abrogate  it  without  the  consent  of  the  other  party. 
Although  the  Association  may  be  an  advisory  body,  yet  it  does  not 
appear  that  any  difficulty  has  been  started  by  them,  or  by  the  churches 
under  their  control.  All  parties  acquiesced  in  it  for  thirty-six  years,  and 
it  would  be  too  late  for  either  now  to  object  to  its  validity.  Nor  is  there 
anything  in  the  idea,  that  they  have  no  power  to  •  regulate  churches 
not  within  their  limits.  This  is  a  matter  of  consent,  and  there  is  nothing 
to  prevent  churches  in  one  State,  from  submitting  themselves  to  the 
ecclesiastical  government  of  churches  located  in  another  State.  The 
Presbyterian  Church  has  furnished  us  with  repeated  examples  of  this 
kind. 

So  far  from  believing  the  Plan  of  Union  to  be  unconstitutional,  I  con- 
cur fully  with  one  of  the  counsel,  that,  confined  within  its  legitimate 
limits,  it  is  an  agreement  or  regulation,  which  the  General  Assembly  not 
only  had  power  to  make,  but  that  it  is  one  which  is  well  calculated  to 
promote  the  best  interests  of  religion. 

If,  as  is  stated,  the  Standing  Committee  of  Congregational  churches, 
have  claimed  and  exercised  the  same  rights  as  ruling  elders  in  Presby- 
teries and  in  the  General  Assembly  itself,  it  is  an  abuse  which  may  be 
corrected  by  the  proper  tribunals;  but  surely  that  is  no  argument,  or  one 
of  but  little  weight,  to  show  that  the  Plan  of  Union  is  unconstitutional 
and  void. 

Although,  in  the  opinion  of  the  Court,  the  Assembly  have  the  right  to 
repeal  the  Plan  of  Union  without  the  consent  of  the  General  Association 
of  Connecticut,  yet  it  was  unjust  to  repeal  it,  without  saving  the  rights 
of  existing  ministers  and  churches.  But  this  is  a  matter,  the  propriety 
of  which  they  must  determine. 

But  whether  the  Plan  of  Union  be  constitutional  or  not,  is  only  mate- 
rial so  far  as  it  is  made  the  basis  of  some  subsequent  resolutions,  to  which 
your  attention  will  now  be  directed. 

At  the  same  session,  and  after  failure  of  an  attempt  at  compromise,  the 
character  of  which  has  been  the  subject  of  much  comment,  the  General 
Assembly  resolved,  that  by  the  abrogation  of  the  Plan  of  Union  of  1801, 
the  Synod  of  the  Western  Reserve  is,  and  is  hereby  declared  to  be,  no 
longer  a  part  of  the  Presbyterian  Church. 

"  Resolved,  That  in  consequence  of  the  abrogation  by  this  General 
Assembly  of  the  Plan  of  Union  of  ISOl,  between  it  and  the  General 
Association  of  Connecticut,  as  utterly  unconstitutional,  and  therefore  null 
ind  void  from  the  beginning,  the  Synods  of  Utica,  Geneva,  and  Genesse, 
which  were  formed  and  attached  to  this  body,  under  and  in  execution  of 


JUDGE  ROGERS'  CHARGE.  457 

said  'Plan  of  Union,'  be,  and  are  hereby  declared  to  be,  out  of  the  con- 
nexion of  the  Presbyterian  Church  in  the  United  States  of  America,  and 
that  they  are  not,  in  form  or  in  fact  an  integral  portion  of  said  church." 

These  resolutions  refer  only  in  name  to  the  four  Synods,  and  if  we 
were  called  on  for  the  f-onstruction  alone,  it  might  be  well  doubted 
whether  they  were  intended,  or  could  be  made  to  include,  the  Presbyte- 
ries within  their  limits,  the  constituents  or  electoral  bodies  of  the  General 
Assembly  itself.  I  should  be  inclined,  for  the  purpose  of  protecting 
their  rights  from  a  resolution  so  final  in  its  character,  to  say  that  they 
were  not  included,  either  in  the  spirit  or  the  words  of  the  resolution. 
But  this  construction  we  are  prevented  from  giving  by  their  declarative 
resolution.  It  is  there  in  effect  said,  that  it  is  the  purpose  of  the  General 
Assembly  to  destroy  the  relations  of  all  said  Synods  and  all  their  consti- 
tuent parts  to  the  General  Assembly  and  to  the  Presbyterian  Church  in 
the  United  States.  In  the  fourth  resolution  it  is  declared,  that  any  Pres- 
bytery within  the  four  Synods,  being  strictly  Presbyterian  in  doctrine 
and  order,  who  may  desire  to  be  united  with  them,  are  hereby  directed 
to  make  application,  with  a  full  statement  of  their  ease,  to  the  next  Gene- 
ral Assembly,  which  will  take  proper  order  thereon. 

There  is  no  mistaking  the  character  of  these  resolutions.  It  is  an 
immediate  dissolution  of  all  connexion  between  the  four  Synods  and  all 
their  constituent  parts,  and  the  General  Assembly.  They  are  destructive 
of  the  rights  of  electors  of  the  General  Assembly.  The  connexion  might 
be  renewed,  it  is  true,  by  each  of  the  Presbyteries  making  application  to 
the  next  General  Assembly,  but  they  are  at  liberty  to  accept  or  refuse  them, 
provided  they,  the  General  Assembly,  deem  them  strictly  Presbyterian 
in  doctrine  and  order.  As  they  had  the  right  to  admit  them,  they  had 
the  right,  also,  to  refuse  them,  unless  in  their  opinion,  they  were  strictly 
Presbyterian  in  doctrine  and  order. 

By  these  resolutions,  the  commissioners,  who  had  acted  with  the  Gene- 
ral Assembly  up  to  that  time,  were  deprived  of  their  seats.  At  the  same 
time,  four  Synods,  with  twenty-eight  Presbyteries,  were  cut  off  from  all 
connexion  with  the  Presbyterian  Church.  The  General  Assembly  resolv- 
ed, that  because  the  plan  of  ISOl  was  unconstitutional,  those  Synods  and 
their  constituent  parts  are  no  longer  integral  parts  of  the  Presbyterian 
Church. 

You  will  observe,  that  I  have  already  said  the  Plan  of  Union  is  consti- 
tutional. That  reason  therefore  fails.  They  have  resolved  that  it  is  not 
only  unconstitutional,  but  that  it  is  null  and  void  from  the  beginning. 
Instead  oi  21.  prospective,  they  have  given  their  resolutions  a  retrospective 
effect,  the  injustice  of  which  is  most  manifest. 

But  admitting,  that  the  Plan  of  Union  is  unconstitutional,  null  and  void 
from  the  beginning,  I  cannot  perceive,  what  justification  that  furnishes 
for  the  exscinding  resolutions.  The  infusion  of  Congregationalists  with 
the  Presbyteries,  or  the  General  Assembly  itself,  does  not  invalidate  the 
acts  of  the  General  Assembly.  They  had  a  right,  notwithstanding  the 
charter,  which  recognises  Elders  and  Ministers  as  composing  the  Presby- 
terian Church,  to  perform  the  functions  committed  to  them  by  the  consti- 
tution. And  among  them  to  establish  and  divide  Synods,  fo  create  Pres- 
byteries, as  in  her  judgment  the  exigencies  of  the  Church  might  demand. 


468  PRESBYTERIAN  CHURCH  CASE. 

Accordingly  we  find  that  the  four  Synods,  and  all  the  Presbyteries 
attached  to  them,  have  been  formed  since  the  year  1801.  The  Assembly 
creates  the  Synods,  and  the  Synods  the  Presbyteries.  Sometimes  the 
Assembly  creates  the  Presbyteries — a  course  pursued  with  some  of  the 
Presbyteries  which  have  been  exscinded.  They  have  been  established 
since,  but  this  is  no  evidence  that  the  four  exscinded  Synods  were  formed 
and  attached  to  the  General  Assembly  under,  and  in  execution  of,  the 
Plan  of  Union.  The  compact,  as  has  been  before  observed,  was  intended 
for  a  different  purpose,  and  imposed  on  the  Presbyterian  Church  no  obli- 
gation to  admit  churches  formed  on  the  plan  as  members.  It  was  a 
voluntary  act,  and  not  the  necessary  result  of  the  agreement;  nor  does  it 
appear  that  the  Presbyteries  were  formed  and  incorporated  with  the 
church  on  any  other  terms  or  conditions  than  other  Presbyterians,  who 
were  in  regular  course  taken  into  the  Presbyterian  connexion. 

But,  gentlemen,  when  resolutions  of  so  unusual  a  character,  so  con- 
demnatory, and  so  destructive  of  the  rights  of  electors,  the  constituents  of 
the  Assembly  itself,  arc  jvassed,  we  have  a  right  to  require  that  the  sub- 
stantial forms  of  justice  be  observed.  But  so  far  from  this,  the  General 
Assembly,  in  the  plenitude  of  its  power,  has  undertaken  to  exclude  from 
all  their  rights  and  privileges  twenty-eight  Presbyteries,  who  are  its  con- 
stituents, without  notice,  and  without  even  the  form  of  a  trial.  By  the 
resolutions,  the  commissioners,  who  had  acted  as  members  of  the  General 
Assembly  for  two  weeks,  were  at  once  deprived  of  their  seats.  Four 
Synods,  twenty-eight  Presbyteries,  five  hundred  and  nine  ministers,  five 
hundred  and  ninety-nine  churches,  and  sixty-thousand  communicants, 
were  at  once  disfranchised  and  deprived  of  their  privileges  in  this  Church. 
This  proceeding  is  not  only  contrary  to  the  eternal  principles  of  justice, 
the  principles  of  the  common  law,  but  it  is  at  variance  with  the  constitu- 
tion of  the  Church. 

This  is  not  in  the  nature  of  a  legislative,  but  it  is  a  judicial  proceed- 
ing to  all  intents  and  purposes.  It  is  idle  to  deny  that  the  Presbyteries 
within  the  infected  districts,  as  they  are  called,  were  treated  as  enemies 
and  offenders,  against  the  rules,  regulations,  and  doctrines  of  the  Church. 
If  there  is  any  thing  that  a  man  values,  it  is  his  religious  rights. 

And  of  this  opinion  were  the  General  Assembly  themselves;  for,  only 
a  few  days  before,  the}^  came  to  the  following  resolutions: 

^^  Resolved,  1.  That  the  proper  steps  be  now  taken  to  cite  to  the  bar 
of  the  next  Assembly  such  inferior  judicatories  as  are  charged  hy  common 
fame  with  irregularities. 

"2.  That  a  special  committee  be  now  appointed  to  ascertain  what  in- 
ferior judicatories  are  thus  charged  by  common  fame,  prepare  charges 
and  specifications  against  them,  and  to  digest  a  suitable  plan  of  procedure 
in  the  matter,  and  that  said  committee  be  requested  to  report  as  soon  as 
practicable." 

Nothing  further  appears  to  have  been  done  in  this  matter  in  the 
General  Assembly,  for,  after  failure  of  the  attempt  at  compromise,  they 
appear  to  have  discovered  a  much  more  expeditious,  if  not  a  more  agreea- 
ble method  of  effecting  their  object. 

I  have  said  that  exscinding  the  Presbyteries  without  notice,  and  with- 
out trial,  was  not  onlv  contrarv  to  the  common  law,  but  it  was  contrary 


JUDGE  ROGERS'  CHARGE.  459 

to  the  constitution  of  the  Church.  And  it  is  only  necessary  to  open  the 
book  of  discipline  to  see  how  very  careful  the  fathers  of  the  church  have 
been  to  secure  to  the  accused  a  full,  fair,  and  impartial  trial. 

Notice  is  given  to  parties  concerned,  at  least  ten  days  before  the  meet- 
ing of  the  judicatory.  The  accused  is  informed  of  the  names  of  all  the 
witnesses  to  be  adduced  against  him.  When  the  charges  are  exhibited, 
the  time,  places,  and  circumstances  are  stated,  if  by  possibility  they  can 
be  ascertained;  citations  are  issued,  signed  by  the  Moderator  or  clerk,  by 
order,  and  in  the  name  of  the  judicatory. 

Judicatories  are  enjoined  to  ascertain,  before  proceeding  to  trial,  that 
their  citations  have  been  duly  served.  And,  to  secure  a  fair  and  impar- 
tial trial,  the  witnesses  are  to  be  examined  in  the  presence  of  the  accused 
who  is  permitted  to  ask  any  question  tending  to  his  own  exculpation. 
'The  judgment,  when  rendered,  is  regularly  entered  on  the  records  of 
the  judicatory. 

If  these  proceedings,  before  judgment,  are  requisite  in  the  case  of  the 
meanest  member  of  the  church,  (the  omission  of  which,  by  any  of  the 
inferior  judicatories,  would  call  down  on  the  offenders  the  severest  cen- 
sure of  the  General  Assembly,)  it  is  inconceivable  that  similar  precautions 
are  not  necessary  to  protect  the  rights  of  Presbyteries,  which  consist  of 
many  individuals,  from  the  injustice,  violence,  and  party  spirit  of  the 
General  Assembly  itself.  Constitutions  are  intended  to  protect  the  weak, 
the  minority,  from  the  injustice  of  the  majority. 

The  majority,  for  the  most  part,  were  able  to  protect  themselves.  It 
is  the  minority  that  need  protection,  and  for  this  purpose  it  is  necessary 
to  encircle  them  with  at  least  all  the  forms  of  justice. 

This,  as  has  been  before  observed,  is  a  judicial  act;  and  if  a  regular 
trial  had  been  had,  and  judgment  rendered,  the  sentence  would  have 
been  conclusive.  We  should  not  have  attempted  to  examine  the  justice 
of  the  proceeding;  but  inasmuch  as  there  have  been  no  citations  and  no 
trial,  I  insist  then,  that  the  resolutions  of  the  General  Assembly  exscind- 
ing the  four  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western 
Reserve,  are  unconstitutional,  mill,  and  void. 

The  judgments  of  all  courts,  whether  ecclesiastical  or  civil,  whether 
of  inferior  or  superior  judicatories,  are  absolutely  void,  when  rendered 
without  citations,  and  without  trial,  and  without  the  opportunity  of  a 
hearing. 

But  admitting  this  to  be  in  the  nature  of  a  legislative  proceeding,  still 
it  is  void;  for  I  deny  the  right  of  any  legislature  to  deprive  an  elector  of 
his  right  to  vote,  either  with  or  without  trial. 

This  is  a  power  which  can  only  be  exercised  by  a  judicial  tribunal, 
who  act  under  the  sanction  of  an  oath,  who  examine  witnesses  on  oath, 
and  who  conform  to  all  the  rules  of  evidence  established  by  the  sages  of 
the  law. 

If  the  Legislature  of  Pennsylvania  should  dare,  by  resolution  or  other- 
wise, to  deprive  one  of  you  gentlemen,  of  your  right  as  an  elector,  it 
would  be  the  duty  of  the  Court  to  declare  such  an  act  null  and  void.  I 
am  unable  to  distinguish  the  difference  between  the  two  cases. 

Whether  the  General  Assembly  are  the  proper  tribunal,  in  the  first 
instance,  for  the  trial  of  offences,  or  whether  the  Presbyteries  are  amena- 
ble to  their   judicatories,  in  this  or  any  other  mode,  it  is  unnecessary  to 


470 


TRESBYTERIAN  CHURCH  CASE. 


decide,  as  ihe  Court  are  clearly  of  the  opinion,  that  if  they  have  the 
right,  it  must  be  exercised  with  tlie  same  rules  and  regulations  which  are 
appl  cable  to  the  inferior  judicatories. 

Personal  process  in  each  case  may  be  tedious,  agitating  and  troublesome 
in  the  highest  degree:  but  it  is  obviously  not  impossible.  Nor  does  it 
strike  me  as  impossible  to  devise  a  plan  under  the  constitution  to  correct 
heresy  and  schism,  without  resort  to  personal  process  in  such  case.  But 
if  it  were  so,  this  is  an  excuse,  but  it  is  no  justification  of  the  exscinding 
resolutions. 

Offenders,  according  to  tlie  rules  of  the  Church,  may  be  brought  before 
a  judicatory  by  common  fame.  But  I  perceive  no  power  to  convict  on 
common  fame. 

You  will  remark,  gentlemen,  tliat  the  Presbyteries,  by  the  constitution 
of  the  church,  are  the  electors  of  the  General  Assembly.  Their  right  of 
representation  has  been  taken  away  without  trial  without  the  examina- 
tion (as  far  as  we  know,)  of  a  single  witness. 

Whether  these  Presbyteries  have  Congregational  churches  in  their  con- 
nexion, is  not  now  material.  It  is  possible  tliat  had  a  trial  been  had, 
that  point,  which  is  deemed  so  important,  may  have  been  disproved.  At 
any  rate  it  would  seem  a  singular  reason  for  dissolving  a  whole  Presby- 
ter}^, that  one  church  was  contaminated  with  false  and  heretical  doctrines, 
or  doctrines  not  strictly  Presb^'terian;  that  a  whole  Presbytery  should 
be  ejected,  because  a  single  church  was  governed  without  the  benefit  of 
ruling  elders.  It  would  be  a  reason,  perhaps  a  good  one,  for  cutting  off 
that  church  from  the  Presbyterian  connexion,  but  none  for  casting  out 
the  whole  Presbytery.  And  this,  gentlemen,  would  be  particularly 
severe  on  the  members  and  congregations,  when  the  fact  was  known  at 
the  time  the  Presbytery  was  created,  that  such  connexion  did  exist. 

If,  however,  after  having  condemned  this  (as  it  is  called)  unnatural 
connexion,  the  Presbyteries  should  obstinately  continue  to  adhere  to  it, 
then  they  would  justly  expose  themselves  to  the  severest  censures  of  the 
Church.  But  whether  there  is  any  mode  known  to  the  constitution,  by 
which  a  Presbytery  can  be  deprived  of  their  right  of  representation  on 
the  floor  of  the  General  Assembly,  is  a  point  which  is  not  necessary  to 
the  case,  and  which  I  shall  not  undertake  to  decide. 

1  have  been  requested  by  the  respondents'  counsel  to  instruct  you,  that 
the  introduction  of  lay  delegates  from  Congregational  establishments  into 
the  judicatories  of  the  Presbyterian  Church,  was  a  violation  of  the  funda- 
mental principle  of  Presbyterianism,  and  in  contravention  of  the  Act  of 
the  Legislature  of  Pennsylvania,  incorporating  the  Trustees  of  the  Church; 
that  any  act  permitting  such  introduction  would  therefore  have  been  void, 
although  submitted  to  the  Presbyteries.  As  an  abstract  question  on  this 
point,  I  give  an  affirmative  answer,  although  gentlemen,  I  am  unable  to 
see  tlie  bearing  it  has  on  the  matter  at  issue  in  this  cause. 

You  have  already  seen  that  the  Court  is  of  the  opinion,  that  the  exscind- 
ing resolutions  are  unconstitutional,  null,  and  void;  yet  this  did  not  of 
itself  dissolve  the  General  Assembly.  The  General  Assembly  was  dis- 
solved only  at  the  termination  of  its  sessions.  You  will  perceive  in  the 
course  of  the  remarks  which  I  shall  have  to  make  to  you,  that  the  acts  of 
this  Assembly  will  have  an  important  influence  on  the  proceedings  of  the 
Assemblv  of'lSSS. 


JUDGE  ROGERS'  CHARGE.  aji 

The  General  xlssembly  of  the  Presbyterian  Church  isenlitled  to  decide 
upon  the  right  claimed  by  any  one  to  a  seat  in  that  body,  but  unlike 
legislative  bodies,  their  decision  is  the  subject  of  revision.  Ecclesiastical 
judicatories  are  subject  to  the  control  of  the  law. 

I  also  instruct  you,  that  a  Mandamus  would  not  reach  the  case,  for 
before  the  remedy  could  be  applied,  the  General  Assembly  would  be  dis- 
solved; and  it  would  be  impossible  to  foresee  whether  the  next  Assembly 
would  persist  in  their  illegal  and  unconstitutional  course  of  conduct.  You 
will  recollect  that  the  commissioners  are  elected  a  short  time  before  the 
meeting  of  the  General  Assembly,  and  that  that  body,  which  sits  but  a 
few  weeks  for  the  transaction  of  business,  is  dissolved,  and  a  new  Gene- 
ral Assembly  is  called,  at  the  termination  of  the  sessions. 

Having  thus  disposed  of  the  proceedings  of  the  General  Assembly  of 
1837,  we  will  now  direct  our  attention  to  the  acts  of  1S3S.  It  will  per- 
haps conduce  to  a  proper  understanding  of  the  somewhat  extraordinary 
proceedings  which  then  took  place,  to  advert  to  the  practice  of  the  Gene- 
ral Assembly  in  times  of  less  excitement  and  interest  than  existed  on  that 
occasion. 

After  the  business  of  the  Assembly  is  finished,  the  General  Assembly 
is  dissolved,  and  another  General  Assembly  is  directed  to  be  chosen  in 
the  same  manner,  to  meet  at  a  time  and  place  designated  by  the  Assem- 
bly. 

The  Moderator,  or  in  case  of  his  absence,  another  member  appointed 
for  the  purpose,  opens  the  next  meeting  with  a  sermon:  he  is  directed  to 
hold  the  chair  till  a  new  Moderator  be  chosen.  As  this  is  for  the  pur- 
pose of  organization,  it  is  not  necessary  that  he  be  a  member,  nor  is  it 
necessary  that  the  clerks  should  be  members,  who  are  requested  to  attend 
for  the  same  purpose. 

By  the  practice  of  the  Assembly,  in  pursuance  of  a  regulation  for  that 
purpose,  the  stated  and  permanent  clerks  are  a  standing  Committee  on 
Commissions.  To  them  are  submitted  the  commissions  of  members;  they 
decide  on  them,  in  the  first  place,  and  if  unexceptionable  in  form  or  sub- 
stance, they  are  enrolled  as  members  of  the  house;  if  exceptionable,  they 
report  them  as  such  in  a  separate  list.  The  Moderator,  after  divine  ser- 
vice, opens  the  session  with  prayer.  He  takes  his  seat  as  Moderator,  and 
proceeds  to  organize  the  house.  The  first  business  in  order  is  the  report 
of  the  clerks,  who  are  the  Committee  on  Commissions,  who  make  a 
report,  stating  on  the  roll  those  who  are  members,  and  designating  either 
in  the  roll,  or  in  a  separate  list,  those  whose  commissions  have  been  exam- 
ined, and  found  defective  either  in  form  or  in  substance. 

The  next  business  in  order,  is  to  appoint  a  committee  on  elections,  from 
the  list  of  members  who  have  been  enrolled. 

To  that  committee  are  referred  the  commissions  of  such  persons  as  may 
claim  seats,  whose  commissions  have  been  examined  and  rejected. 

It  is  usual  to  appoint  the  Committee  on  Elections  on  the  morning  of 
the  first  day  of  the  session,  and  they,  unless  in  cases  of  difficulty,  report 
to  the  house  in  the  afternoon,  and  the  house  decides  upon  the  propriety 
of  the  report.  It  would  seem  also  to  be  the  practice,  that  when  a  com- 
missioner has  omitted  to  hand  in  his  commission  to  the  clerks,  before  the 
meeting  of  the  Assembly,  he  may  do  so  in  the  Assembly,  and  the  Com- 
mittee of  Commissions  may  add  his  name  to  the  roll  of  members. 


472  PRESBYTERIAN  CHURCH  CASE. 

After  the  liouse  is  organized,  they  proceed  to  the  choice  of  a  Modera- 
tor, and  stated  and  permanent  clerks  to  preside  over  their  deliberations, 
and  to  keep  their  records  during  their  session. 

You  will  observe  that  I  am  speaking  of  the  rules  of  practice  in  the  ses- 
sions of  1837  and  1838. 

As  the  Church  increased  in  numbers,  and,  I  may  add  without  giving 
offence,  after  the  spirit  of  contention  had  increased  also  in  the  same  or  a 
greater  ratio,  the  simplicity  of  the  ancient  practice  gradually  changed. 
The  changes  have  been  stated  with  great  clearness  by  one  of  our  vene- 
rable fathers;  but,  as  we  have  to  do  with  existing  rather  than  ancient 
rules,  it  is  not  necessary  for  me  to  notice  them. 

The  jury  will  recollect  that  the  Court  has  decided,  that  the  exscinding 
resolutions  of  the  General  Assembly  of  1837  were  unconstitutional,  null, 
and  void. 

It  results  from  this  opinion,  that  the  commissioners  from  the  Presby- 
teries within  the  bounds  of  these  Synods,  had  the  same  right  to  seats  in 
the  General  Assembly,  as  the  members  from  other  Presbyteries  within 
the  jurisdiction  of  the  Assembly,  liable  to  be  dealt  with  by  them  in  the 
same  manner  as  commissioners  from  other  Presbyteries. 

It  was  under  these  circumstances,  they  presented  themselves  with  com- 
missions in  proper  form,  to  Mr.  Krebs  and  Dr.  McDowell,  the  clerks  of 
the  former  Assembly.  They  not  only  rejected  their  commissions,  but 
refused  to  put  their  names  on  the  roll  at  all. 

I  shall  not  now  stop  to  inquire  whether  these  gentlemen  were  or  were 
not,  pledged  to  the  course  they  thought  proper  to  pursue,  nor  into  the 
question,  whether  they  were  the  judges  of  the  constitutionality  of  an  act 
of  a  former  Assembly,  as  I  am  clearly  of  the  opinion,  and  I  so  instruct 
you,  that  they  grossly  erred  in  refusing  to  place  their  names  on  the  list 
of  rejected  applicants.  They  were  the  Committee  on  Commissions  to 
whom  such  questions  are  in  the  first  place  referred.  It  was  their  duty  to 
decide  on  the  propriety  of  the  application,  and  to  refer  the  decision  to  the 
further  action  of  the  house,  by  adding  their  names  to  the  roll  of  members 
whose  commissions  had  been  examined  and  rejected. 

They  cannot  consider  commissions,  in  other  respects  regular,  as  alien 
and  outlawed,  merely  because  they  proceeded  from  Presbyteries  that  had 
been  unconstitutionally  put  out  of  the  pale  of  the  church,  without  cita- 
tion and  without  trial. 

It  is,  therefore,  the  opinion  of  the  Court,  that  in  this  there  was  a  palpa- 
ble violation  of  the  rights  of  the  proscribed  commissioners.  And  this, 
gentlemen,  was  the  second  error  committed,  and  which  led  to  the  scene 
of  disorder  which  ensued,  so  little  creditable  to  a  Christian  assembly. 

After  the  Moderator,  Di\  Elliott,  had  taken  the  chair,  Dr.  Patton  ad- 
dressed the  chair,  and  stated  that  he  had  certain  resolutions  to  offer.  The 
Moderator  decided  that  he  was  out  of  order,  that  the  first  business  was 
the  report  of  the  clerks,  who,  you  will  recollect,  were  the  committee  on 
commissions. 

Dr.  Patton  stated  that  his  motion  or  resolution  had  reference  to  the 
formation  of  the  roll,  that  it  was  his  intention  to  make  his  motion,  and 
have  the  question  taken  without  debate.  The  Moderator  said  the  clerks 
were  proceeding  with  their  report.  Dr.  Patton  reminded  the  Moderator 
that  he  had  the  floor  before  the  clerks.     The  Moderator  still  decided  that 


JUDGE  ROGERS'  CHARGE. 


473 


he  was  out  of  order,  whereupon  Dr.  Patton  respectfully  appealed  from 
the  decision  of  the  chair.  The  Moderator  decided  that  the  appeal  was 
out  of  order,  and  stated  as  a  reason  for  the  decision,  that  there  was  no 
house  to  which  the  appeal  could  be  taken. 

The  court  is  of  the  opinion  that  the  decision  of  the  Moderator  was 
correct,  for  the  reason  given  by  him.  It  is  a  rule  of  the  Assembly  that 
no  persons  shall  be  permitted  to  vote,  unless  they  are  enrolled  and  until 
the  report  of  the  Committee  on  Commissions,  it  cannot  be  judicially 
known  who  are  members  of  the  house,  and  as  such,  privileged  to  take 
part  in  the  organization.  If,  however,  there  was  a  majority  for  it,  arising 
from  the  absence  of  the  Moderator,  or  the  refusal  of  the  clerks  to  report 
the  roll,  there  would  be  no  difficulty  in  organizing  the  Assembly.  The 
decision  of  the  Moderator  was  correct,  if  the  reason  assigned  was  the  true 
'reason. 

After  this  disposition  of  Dr.  Patton's  motion,  the  clerks  made  a  report, 
omitting,  improperly,  as  has  been  before  stated,  the  names  of  the  comis- 
sioners  from  the  exscinded  Presbyteries,  and  the  Moderator  announced 
to  those  who  had  not  presented  their  commissions,  that  now  was  the  time 
to  present  them,  and  have  themselves  enrolled.  Some  of  the  witnesses 
say  that  the  Moderator  announced  that,  if  there  were  any  names  omitted, 
this  was  the  time  to  present  their  commissions.  The  one  side  say  that 
this  was  a  distinct  intimation  from  the  Moderator  himself,  that  now  was 
the  time  to  present  the  commissions  of  the  commissioners  from  the  ex- 
scinded Presbyteries.  The  other  say  it  included  those  only  who  had  not 
presented  their  commissions  to  the  clerks.  That  the  only  course  to  be 
pursued  as  to  those  who  had  presented  their  commissions,  and  had  their 
claim  to  be  enrolled  refused,  was  to  have  their  cases  referred  to  the  com- 
mittee on  elections,  on  whose  report  only  would  it  come  properly  before 
the  Assembly. 

However  the  fact  may  be,  and  this  of  course  you  will  decide,  at  this 
time  Dr.  Mason,  a  member  whose  seat  was  uncontested,  and  who  had 
been  reported  by  the  clerks  to  the  house  as  a  member,  moved  that  the 
names  of  the  commissioners  from  the  exscinded  Synods  should  be  added 
to  the  roll.  He  had  the  commissions  in  his  hand,  and  at  the  time  of 
the  motion,  stated  that  they  were  the  commissions  of  commissioners, 
which  had  been  rejected  by  the  clerks.  The  Moderator  inquired  from 
what  Presbyteries  those  commissioners  came.  Dr.  Mason  replied,  they 
came  from  the  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Re- 
serve. The  Moderator  declared  Dr.  Mason  oiit  of  order,  or  said  that  he 
was  out  of  order  at  that  time.  The  witnesses  differ  as  to  the  precise 
expression,  but  whatever  may  have  been  the  reason  assigned,  they  all 
concur  that  the  Moderator  declared  Dr.  Mason  out  of  order.  Dr.  Mason 
said,  that  with  great  respect  to  the  chair  he  must  appeal  from  the  decision. 
The  appeal  was  seconded.  The  Moderator  refused  to  put  the  appeal, 
declaring  the  appeal  to  be  out  of  order. 

In  this  stage  of  the  cause,  it  is  unnecessary  to  decide  whether  the  ori- 
ginal motion  was,  or  was  not  out  of  order.  I  shall  put  this  part  of  the 
case  on  the  refusal  of  the  Moderator  to  put  the  question  on  the  appeal. 
The  question  is  not  whether  an  appeal  may  not  be  out  of  order,  but  it  is 
whether  this  appeal  was  out  of  order.  If  the  Moderator  had  put  the 
question  on  the  appeal,  it  is  possible  the  house  would  have  decided  that 

60 


474 


PRESBYTERIAN  CHURCH  CASE. 


the  original  motion  was  out  of  order.  They  might  have  thought  that  the 
matter  was  properly  referrable  to  the  Committee  of  Elections — that  it 
was  a  privileged  question;  or,  the  Assembly  might  by  possibility  have 
taken  a  different  view  of  the  question.  And  whatever  they  might  have 
thought  and  decided,  would  have  been  conclusive. 

But  by  refusing  to  put  the  question,  the  Moderator  took  all  power  to 
himself  over  this  question.  No  reason  was  given  by  the  Moderator.  It 
rested  simply  upon  his  will.  In  the  opinion  of  the  Court,  it  was  a  dere- 
liction of  duty — a  usurpation  of  authority,  which  called  for  the  censure 
of  the  house.  He  could  not  then  allege,  as  he  had  done  on  a  former  occa- 
sion, that  there  was  no  house  to  which  the  appeal  could  be  taken.  At 
that  time,  you  will  recollect  that  the  clerks  had  made  their  report,  and  it 
was  then  ascertained  what  members  had  a  right  to  vote. 

Had  the  question  on  the  appeal  been  allowed,  it  could  then  have  been 
ascertained  whether  a  motion  had  been  made  for  the  appointment  of  a 
Committee  on  Elections.  As  it  is,  it  is  doubtful  whether  the  motion  was 
made  before  or  after  the  motion  made  by  Dr.  Mason.' 

And  here  let  me  remark,  that  I  look  upon  the  refusal  of  the  clerks  to 
put  the  names  of  the  commissioners  on  the  roll,  and  this  refusal  of  the 
Moderator  to  put  the  question  on  an  appeal  to  the  house,  as  most  unfor- 
tunate. 

If  the  excitement  did  not  the7i  commence,  yet  it,  with  the  uproar  and 
confusion  which  ensued,  from  this  time  greatly  increased.  After  the 
refusal  of  the  Moderator  to  allow  an  appeal,  the  Rev.  Miles  P.  Squier 
arose,  and  said,  that  he  had  presented  his  commission  to  the  clerks, 
which  they  had  refused  to  receive.  The  Moderator  asked  from  Avhat 
Presbytery  he  came.  He  said  from  the  Presbytery  of  Geneva.  The 
Moderator  asked  if  it  was  within  the  bounds  of  the  Synod  of  Geneva. 
He  said  it  was.  The  Moderator  then  replied,  we  do  not  know  you. 
The  precise  meaning  and  import  of  these  words  has  been  the  subject  of 
comment.  It  will  be  for  you  to  give  them  such  weight  as  you  think 
them  entitled  to,  in  another  part  of  this  cause. 

And  here,  let  me  remark,  that  the  witness  had  not  a  right,  (whatever 
injustice  he  may  have  suffered,)  either  to  speak  or  vote  on  any  question 
before  the  house.  He  had  not  been  reported  as  a  member  by  the  clerks; 
and  the  rules  of  the  General  Assembly  required,  that  before  a  member 
speak  or  vote,  he  must  be  enrolled. 

To  this  time  the  witnesses  substantially  agree  in  their  statement.  There 
was  but  little  noise,  and  but  little  confusion.  Every  person  saw,  and 
every  person  heard,  all  the  transactions  in  the  Assembly. 

And  here,  gentlemen,  it  will  be  your  solemn  duty,  respectfully  but 
firmly,  to  decide  upon  the  conduct  of  the  Moderator. 

Was  he  performing  his  duly  as  the  presiding  officer  of  the  house,  in  its 
organization?  Or  was  he  carrying  out  the  unconstitutional  and  void  pro- 
ceedings of  the  General  Assembly  of  1837,  which  cut  off  from  the  body 
of  the  Presbyterian  Church  four  Synods,  twenty-eight  Presbyteries,  five 
hundred  and  nine  ministers,  and  near  sixty  thousand  communicants,  with- 
out citation,  and  without  trial? 

I  put  the  question  to  you,  because  it  is  the  opinion  of  the  Court,  that 
the  General  Assembly  has  a  right  to  depose  their  Moderator,  upon  suffi- 
cient cause. 


JUDGE  ROGERS'  CHARGE. 


475 


This  power  is  necessary  for  the  protection  of  the  house;  otherwise  the 
Moderator,  instead  of  being  the  servant,  would  be  the  master  of  the 
house.  There  is  nothing  in  the  constitution  of  the  church,  that  restricts 
or  impairs  the  right. 

It  appHes  to  all  Moderators,  whether  Moderators  for  the  session,  or 
Moderators  for  organization.  The  right  is,  perhaps,  less  questionable  in 
the  latter,  than  in  the  former  case.  He  is  a  ministerial  as  well  as  judicial 
officer. 

Nor  do  I  think  that  they  are  restrained  in  their  choice  to  a  Moderator 
of  a  former  year,  who  may  be  present.  That  rule  applies  only  to  ordi- 
nary cases,  when  the  Moderator  of  the  last  year  is  not  in  attendance,  or 
is  unable,  from  some  physical  reason,  to  discharge  the  duties  of  the  office. 
It  does  not  apply  to  the  peculiar  and  extraordinary  circumstances  of  this 
case. 

The  deposition  of  a  Moderator,  and  the  election  of  another  in  his  place, 
it  appears,  is  not  without  precedent  in  the  history  of  the  Church. 

There  is  one  thing  certain,  that  the  deposition  of  a  Moderator,  and  the 
election  of  another,  if  in  other  respects  regular,  will  not  of  itself  vitiate 
the  organization. 

After  Mr.  Squier  had  taken  his  seat,  upon  the  emphatic  declaration  of 
the  Moderator,  we  do  not  know  you,  Mr.  Cleaveland  arose. 

Mr.  Cleaveland  held  in  his  hand  a  paper,  from  which  he  read,  at  the 
same  time  accompanying  it  with  remarks  not  on  the  paper.  It  is  not  dis* 
tinctly  in  evidence  what  he  did  say,  but  in  substance  it  was  perhaps  this: 

That  as  the  commissioners  to  the  General  Assembly  of  183S,  from  a 
large  number  of  Presbyteries  had  been  refused  their  seats,  and  as  we  have 
been  advised  by  counsel  learned  in  the  law,  that  a  constitutional  organi- 
zation of  the  Assembly  must  be  secured  at  this  time  and  in  this  place,  he 
trusted  it  would  not  be  considered  an  act  of  discourtesy,  but  merely  a 
matter  of  necessity,  if  we  now  proceed  to  organize  the  General  Assembly 
of  1838,  in  the  fewest  words,  the  shortest  time,  and  with  the  least  inter- 
ruption practicable. 

Mr.  Cleaveland  then  moved  that  Dr.  Beman  of  the  Presbytery  of 
Troy,  be  Moderator,  or,  as  some  of  the  witnesses  say,  that  he  take  the 
chair.  The  motion  being  seconded,  the  question  was  put  by  Mr.  Cleave- 
land, and  was  carried,  as  the  witnesses  for  the  relators  say,  by  a  large 
majority,  and  by  this  they  mean,  that  a  large  majority  of  voices  voted  in 
the  affirmative.  The  question  was  reversed,  and  as  the  same  witnesses 
say,  there  were  some  voices  coming  from  the  south-west  corner  of  the 
church,  who  voted  in  the  negative.      This  is  denied  by  the  respondents. 

Dr.  Beman,  who  was  sitting  in  a  pew,  the  locality  of  which  has  been 
described  to  you,  stept  into  the  aisle  and  called  the  house  to  order.  A 
motion  was  then  made  that  Dr.  Mason  and  Mr.  Gilbert  be  appointed 
clerks.  There  being  no  others  put  in  nomination,  the  question  was  put 
by  the  Moderator,  Dr.  Beman,  in  the  affirmative  and  negative,  and  there 
was  a  majority  of  voices  in  their  favour. 

Dr.  Beman  then  stated  that  the  next  business  in  order  was  the  election 
of  a  Moderator.  A  member  nominated  Dr.  Fisher,  and  no  other  person 
being  in  nomination,  the  question  was  put  affirmatively  and  negatively, 
and  Dr.  Fisher  was  elected  by  a  large  majority  of  voices.     There  were 


476  PRESBYTERIAN  CHURCH  CASE. 

no  negative  votes  on  this  nomination:  several  of  the  witnesses  say  he  was 
unanimously  elected. 

Dr.  Beman  then  announced  the  election  of  Dr.  Fisher  as  Moderator, 
and  said  he  should  govern  himself  hy  the  rules  which  might  be  hereafter 
adopted. 

Dr.  Fisher  stepped  into  the  aisle,  moved  towards  the  north  end  of  the 
church,  and  called  for  business;  and  Dr.  Mason  and  Mr.  Gilbert  were 
chosen  clerks,  no  others  being  put  in  nomination. 

Dr.  Beman  stated  that  some  difficulties  had  been  made  by  the  trustees 
about  the  occupation  of  the  church  in  which  they  were  then  sitting.  To 
avoid  difficulty,  a  motion  was  made  to  adjourn  to  meet  forthwith  at  the 
lecture-room  in  the  First  Presbyterian  Church.  The  question  was  taken 
on  the  motion,  and  was  decided  in  the  affirmative,  there  being  no  votes 
in  the  negative.  The  result  of  this  vote  was  announced  by  Dr.  Fisher, 
who  then  stated  if  there  were  any  commissioners  who  had  not  presented 
their  commissions,  they  might  then  and  there  attend  for  that  purpose. 
The  members  of  the  house  then  repaired  to  the  lecture-room  of  the  First 
Presbyterian  Church,  proceeded  with  their  business,  and  on  the  24th  of 
May,  1838,  elected  the  relators  trustees,  in  the  place  and  stead  of  the 
respondents. 

This  is  the  relators's  case,  and  here  I  will  direct  your  attention  to  some 
of  the  points  which  have  been  raised  by  the  respondents'  counsel. 

The  respondents  contend  that  Mr.  Cleaveland  had  no  right  to  put  the 
question.  They  object,  also,  to  the  time  and  manner  of  putting  the  ques- 
tion. Under  one  or  the  other  of  these  points  I  will  endeavour  to  include 
the  question  which  has  been  raised,  and  which  has  been  argued  with  such 
force  and  with  such  a  variety  of  illustrations. 

Had  Mr.  Cleaveland  a  right  to  put  the  question?  It  must  be  conceded, 
that  unless  he  was  authorized  to  take  the  sense  of  the  house,  the  members 
were  not  bound  to  vote  upon  it.  In  ordinary  cases,  it  is  usual  for  a 
member  who  moves  a  question,  to  put  it  in  writing,  and  deliver  it  to  the 
speaker,  who,  when  it  has  been  seconded,  proposes  it  to  the  house,  and 
the  house  are  then  said  to  be  in  possession  of  the  question.  But  this,  the 
relators  say,  is  not  an  ordinary  question,  but  one  of  a  peculiar  nature. 
They  allege,  that  the  Moderator  had  shown  gross  partiality  and  injustice 
in  the  chair;  that  he  was  engaged  in  a  plan  or  scheme  to  carry  out  the 
unconstitutional  and  void  act  of  1837,  which  deprived  certain  commis- 
sioners of  their  seats:  that  this  authorized  the  house  to  displace  him,  and 
to  elect  another  to  discharge  the  duties  which  he  failed  or  was  unwilling  to 
perform.  If  this  were  so,  of  which  you  are  the  judges,  Mr.  Cleaveland 
had  a  right  to  take  the  sense  of  the  house,  on  the  propriety  of  the  Mode- 
rator's conduct.  It  would  be  worse  than  useless  to  require  him  to  put 
the  question  on  his  own  deposition,  for  this  the  house  were  authorized  to 
believe  he  would  refuse  to  perform,  as  he  had  failed  in  the  performance 
of  his  duty  before.  The  law  compels  no  person  to  do  a  vain  or  nugatory 
thing.  The  law  maxim  is,  '■^  Lex  neminern  cogit  ad  vana,  seii  im- 
possibilia."  Nor,  gentlemen,  was  it  necessary  that  it  should  be  taken  by 
clerks,  if  they,  as  well  as  the  Moderator,  were  engaged  in  the  same  plan, 
to  deprive  members  of  seats  to  which  they  were  justly  and  constitu- 
tionally entitled.     It  is  the  opinion  of  the  Court,  that  a  member  although 


JUDGE  ROGERS'  CHARGE. 


477 


not  an  officer,  is  entitled  to  put  a  question  to  the  house  in  such  circum- 
stances. 

The  motion  which  Mr.  Cleaveland  made,  after  explaining  his  object, 
was  either  that  Dr.  Beman  be  Moderator,  or  that  Dr.  Beman  be  called  to 
the  chair.  It  is  of  no  consequence  in  which  form  the  motion  was  made. 
They  are  substantially  the  same.  The  motion  amounted  to  this:  that  Dr. 
Elliott,  who  occupied  the  chair,  should  be  deposed,  and  that  Dr.  Beman 
should  be  elected  chairman  and  Moderator  in  his  stead.  It  was  a  perti- 
nent question,  easily  understood,  and  not  calculated  to  mislead  the  dullest 
member  of  the  Assembly.  It  was  in  proper  form,  and  in  proper  time:  for, 
gentlemen,  it  was  not  necessary  to  precede  it  by  a  motion  that  the  house 
should  now  proceed  to  the  choice  of  a  Moderator.  All  these  requisites 
are  substantially  comprised  in  the  motion  which  was  made.  There  was 
nothing  in  the  question,  or  in  the  manner  of  putting  it,  which  was  disor- 
derly or  which  might  have  led  to  disorder.  Mr.  Cleaveland  put  the  ques- 
tion to  the  house,  which,  under  certain  circumstances,  of  which  I  have 
already  said  you  are  the  judges,  he  had  a  right  to  do.  In  the  course  of  his 
remarks,  he  turned  himself  partly  round  from  the  Moderator;  but  this, 
so  far  as  any  point  of  law  is  involved,  is  of  no  sort  of  consequence.  It  is 
also  contended  by  the  respondents,  that  the  claim  of  members  to  seats, 
according  to  the  standing  order  of  the  house,  was  referrable  to  the  Com- 
mittee on  Elections,  and  farther,  that  the  house  cannot  enter  into  business 
until  the  organization  is  complete.  The  latter  point  the  court  answers  in 
the  negative.  There  is  no  doubt  the  house  may  elect  a  Moderator, 
although  the  seats  of  some  of  the  members  are  contested.  In  general, 
they  would  prefer  to  await  the  report  of  the  Committee  on  Elections;  but 
this  would  be  a  matter  of  discretion.  The  right  to  seats  would  be  as  well, 
if  not  better  decided,  after  the  house  was  organized  by  the  election  of  a 
Moderator,  as  when  it  was  in  its  inchoate  or  incipient  state.  Such  an 
objection  would  not  vitiate  the  organization,  whatever  cause  there  might 
be  on  the  part  of  those  who  had  been  deprived  of  seats,  to  complain  of 
the  precipitancy  of  the  Assembly  in  proceeding  to  business,  particularly 
if  done  with  a  view  of  preventing  them  from  partaking  in  the  business. 

In  deciding  on  the  first  point,  and  others  which  have  been  raised  by  the 
respondents,  it  is  necessary  to  advert  to  the  nature  of  the  questions  them- 
selves. 

Dr.  Mason  moved  that  the  names  of  certain  members  who  had  been 
unconstitutionally  and  unjustly  deprived  of  seats  in  the  Assembly,  should 
be  added  to  the  roll.  The  motion  of  Mr.  Cleaveland,  and  the  subsequent 
resolutions  or  motions,  were  the  consequences  of  the  decision  of  the 
Moderator,  that  Dr.  Mason's  motion  was  out  of  order,  and  the  refusal  of 
the  Moderator  to  allow  an  appeal  to  the  house.  The  right  of  members 
was  unjustly  invaded,  and  from  this  moment  became  a  question  of  privi- 
lege, which  over-rides  all  other  questions  whatever.  A  question  of  privi- 
lege is  always  in  order,  to  which  privileged  questions,  such  as  the  appoint- 
ment of  a  Committee  of  Elections,  must  give  way.  The  cry,  therefore, 
of  "Order!"  from  the  Moderator,  or  from  any  member  whatever,  under 
such  circumstances,  would  be  disorderly.  Two  inconsistent  rights  can- 
not exist  at  the  same  time;  and  it  is  obvious  that  if  a  member,  or  the 
Moderator,  may  put  a  stop  to  a  proceeding  which  involves  in  it  the  con- 
duct of  the  Moderator  himself,  in  the  discharge  of  his  high  functions,  and 


478  PRESBYTERIAN  CHURCH  CASE. 

a  question  of  privilege,  by  the  cry  of  order,  it  would  be  an  easy  and  effec- 
tual mode  of  destroying  the  rights  of  members,  in  any  deliberative  assem- 
bly. It  is  usual,  when  it  is  intended  to  prevent  a  member  from  proceed- 
ing with  a  motion,  to  rise  to  order,  and  a  requisition  is  then  made  by  the 
Moderator,  that  the  member  take  his  seat.  It  is  the  opinion  of  the  court, 
that  Dr.  Mason  had  the  right  to  make  his  motion  before  the  appointment 
of  the  Committee  on  Elections.  Indeed,  I  know  of  no  other  mode  of  get- 
ting this  question  before  the  Committee  on  Elections,  except  by  bringing 
it  before  the  house,  who  might  either  decide  it  themselves,  or,  if  they 
thought  proper,  refer  it  to  that  committee,  in  whose  report  it  would  again 
come  before  the  house.  In  this  point,  I  wish  you  distinctly  to  under- 
stand, that  it  is  the  opinion  of  the  court,  and  that  I  so  instruct  you,  that 
if  you  believe  that  the  conduct  of  the  Moderator  and  clerks  was  the  result 
of  a  preconcerted  plan  with  a  portion  of  the  members,  to  carry  out  the 
unconstitutional  and  void  act  of  1837,  which  deprived  the  members  from 
certain  Presbyteries  of  seats  in  the  Assembly,  then,  in  this  particular,  the 
requisitions  of  the  law  have  been  substantially  complied  with. 

That  the  fact  that  Mr.  Cleaveland  put  the  question  instead  of  the  Mode- 
rator, the  cries  of  order  when  this  was  in  progress,  the  omission  of  some 
of  the  formula  usually  observed,  when  there  is  no  contest  and  no  excite- 
ment, such  as  standing  in  the  aisle,  instead  of  taking  the  chair  occupied 
by  the  Moderator,  not  using  the  usual  insignia  of  office,  putting  the  ques- 
tion in  an  unusual  place,  and  the  short  time  consumed  in  the  organization 
of  the  house,  and  three  or  more  members  standing  at  the  same  time,  will 
not  vitiate  the  organization,  if  you  should  be  of  the  opinion  that  this 
became  necessary,  from  the  illegal  and  improper  conduct  of  the  adverse 
party. 

It  is  a  singular  point,  gentlemen,  that  this  part  of  the  respondents'  case 
rests  upon  standing  rules  which  were  not  then  in  existence.  You  will 
recollect,  that  each  Assembly  adopted  its  own  rules;  indeed,  both  the 
relators  and  respondents  have  appealed  to  these  rules.  I  will  remark, 
that  the  roll  of  members  reported  by  Mr.  Krebs  and  Dr.  McDowell,  was 
the  roll  of  the  house.  As  such,  it  was  virtually  in  the  possession  of  the 
clerks  afterwards  chosen,  provided  they  were  regularly  and  duly  elected. 
It  is  the  opinion  of  the  court,  that  the  existence  of  a  house  competent  to 
perform  all  the  functions  of  a  General  Assembly,  does  not  depend  on  the 
observance  or  non-observance  of  the  standing  order  of  the  house.  You, 
however,  must  take  this  opinion  with  the  qualification,  that  you  believe 
that  the  house  had  been  substantially  organized  for  the  transaction  of  busi- 
ness; that  you  should  believe  that  the  deviation  from  the  accustomed 
course,  was  the  necessary  result  of  a  preconcerted  plan,  unconstitutionally 
to  exclude  the  members  from  the  exscinded  Presbyteries  from  their  seats 
in  the  Assembly.  And  here,  gentlemen,  let  me  request  your  particular 
attention  to  the  point  in  issue.  The  relators  say,  that  they  are  trustees 
regularly  appointed  by  the  General  Assembly  of  the  Presbyterian  Church. 
In  other  words,  they  affirm  that  the  house  which  assembled  in  the  lecture- 
room  of  the  First  Presbyterian  Church,  was  the  General  Assembly  of  the 
Presbyterian  Church.  This  is  an  affirmative  proposition  which  the  rela- 
tors arc  bound  to  support. 

The  question  is  not,  which  is  the  General  Assembly,  but  whether  they 
are  the  General  Assembly,  and  as  such  had  a  right  to  elect  the  relators 


JUDGE  ROGERS'  CHARGE.  479 

trustees.     This  allegation  the  relators  must  sustain  to  your  satisfaction, 
otherwise  your  verdict  must  be  in  favour  of  the  respondents. 

The  respondents  strenuously  deny  that  the  portion  of  brethren  who 
assembled  in  the  First  Presbyterian  Church,  are  the  General  Assembly. 
On  this  point,  both  parties,  the  relators  and  respondents,  have  put  them- 
selves upon  the  country — and  you,  gentlemen,  are  that  country. 

Let  me  now  briefly  call  your  attention  to  the  relator's  case.  The 
Moderator,  Dr.  Elliott,  proceeded  to  organize  the  house.  The  clerks, 
Mr.  Krebs  and  Dr.  McDowell,  reported  to  the  House  the  roll  of  mem- 
bers, omitting  those  who  were  not  entitled  to  seats.  Dr.  Patton  offered 
a  resolution  on  the  formation  of  the  roll.  This  motion  was  declared  by 
the  Moderator  to  be  out  of  order,  also  his  appeal  was  declared  to  be  out 
of  order.  Dr.  Mason  then  moved  that  the  names  of  the  members  from 
the  Presbyteries  within  the  exscinded  Synods  should  be  added  to  the 
roll.  This  motion  was  declared  by  the  Moderator  to  be  out  of  order. 
An  appeal  from  that  decision  was  demanded,  which  was  also  declared  to 
be  out  of  order.  On  motion  of  Mr.  Cleaveland,  the  former  Moderator 
was  deposed  for  sufficient  cause,  and  Dr.  Beman  was  elected  Moderator, 
and  Mr.  Gilbert  and  Dr.  Mason  were  elected  clerks.  After  organization, 
Dr.  Fisher  was  elected  Moderator,  and  Mr.  Gilbert  and  Dr.  Mason  were 
elected  clerks  for  the  Assembly.  The  Assembly  being  thus  organized 
by  the  appointment  of  officers,  adjourned  to  meet  forthwith  at  the  lecture 
room  of  the  First  Presbyterian  Church,  and  accordingly  met  in  pursuance 
of  the  adjournment,  and  on  the  24th  of  May,  1838,  in  due  form,  elected 
the  relators  trustees.  This,  gentlemen,  is  a  summary  of  the  plaintiff's 
case;  and  if  the  facts  are  as  stated,  your  verdict  should  be  rendered  in 
favour  of  the  relators. 

The  respondents  deny  that  the  portion  of  brethren  who  assembled  in 
the  First  Presbyterian  Church  are  the  General  Assembly. 

Their  objection,  in  addition  to  the  points  which  have  been  already 
stated,  is,  that  there  was  not  a  full  and  free  expression  of  the  opinion  of 
the  house. 

They  allege  that  the  various  motions  for  the  appointment  of  Moderator 
and  clerks,  and  for  the  adjournment,  were  not  carried  by  a  majority  of 
the  house. 

It  is  hardly  necessary  to  observe  that  spectators  had  no  right  to  vote, 
nor  had  members  not  enrolled  by  the  clerks,  although  entitled  to  seats  a 
right  to  vote.  But  notwithstanding  this,  it  is  the  opinion  of  the  Court, 
that  if,  after  deducting  those  who  voted  and  were  not  entitled  to  vote, 
there  was  a  clear  majority  in  favour  of  several  motions,  this  irregularity, 
or  if  you  please,  something  worse,  would  not.  vitiate  the  organization. 
The  presumption  is,  that  none  but  qualified  persons  voted;  but  there  is 
proof  that  some  voted  who  were  not  enrolled,  yet  this  of  itself  will  not 
destroy  the  respondents'  right  of  action.  You,  gentlemen,  will  in  the  first 
place,  inquire  whether  there  was  a  majority  of  affirmative  voices  of  mem- 
bers entitled  to  vote. 

If  there  was  not,  there  is  an  end  of  the  question  and  your  verdict  must 
be  in  favour  of  the  respondents. 

But  if  there  was  a  majority,  you  will  farther  inquire  whether  the  ques- 
tion on  the  several  motions  was  reversed. 

If  they  were  not  reversed,  your  verdict  must  be  in  favour  of  the 


480  PRESBYTERIAN  CHURCH  CASE. 

respondents;  for  in  that  case,  it  is  very  clear,  the  members  had  no  oppor- 
tunity of  showing  their  dissent  to  several  motions  or  propositions  which 
were  submitted  to  them. 

These,  gentlemen,  are  questions  of  fact  for  your  decision.  I  will  con- 
tent myself  with  referring  to  the  evidence  and  the  arguments  of  the  coun- 
sel, and  at  the  same  time  observing  to  you  that  it  is  your  duty  to  reconcile 
the  testimony  of  your  case,  and  with  one  other  observation,  that  affirma- 
tive testimony  is  more  to  be  relied  on  than  negative  testimony. 

And  here,  gentlemen,  I  wish  you  distinctly  to  understand,  that  it  is  the 
majority  of  those  who  were  entitled  to  vote,  and  who  actually  voted,  that 
is  to  be  counted  on  the  various  questions  which  were  submitted  to  the 
house.  I  wish  you  also  to  understand,  that  it  is  the  majority  of  members 
that  had  been  enrolled,  that  must  determine  this  question.  When  there 
is  a  quorum  of  members  present,  the  Moderator  can  only  notice  those 
who  actually  vote,  and  not  those  who  do  not  choose  to  exercise  their  pri- 
vilege of  voting.  "Whenever,"  says  Lord  Mansfield,  "electors  are  pre- 
sent, and  don't  vote  at  all,  they  virtually  acquiesce  in-  the  election  made 
by  those  who  do." 

And,  with  this  principle,  agrees  one  of  the  rules  of  the  General  Assem- 
bly itself,  which  must  be  familiar  to  every  member. 

Members  (30th  rule)  ought  not,  without  weighty  reasons,  to  decline 
voting,  as  this  practice  might  leave  the  decision  of  very  interesting  ques- 
tions to  a  small  proportion  of  the  judicatory.  Silent  members,  unless 
excused  from  voting,  must  be  considered  as  acquiescing  with  the  majority. 

This  is  not  only  the  doctrine  of  the  common  law,  of  the  written  law, 
as  you  have  seen,  but  it  is  the  doctrine  of  common  sense:  for  without  the 
benefit  of  this  rule,  it  would  be  almost  impossible,  certainly  very  incon- 
venient, to  transact  business  in  a  large  deliberative  assembly. 

Of  this  rule,  gentlemen,  we  have  had  very  lately  a  most  memorable 
instance.  The  fundamental  principles  of  your  government  have  been 
altered;  a  new  constitution  has  been  established  by  a  plurality  of  votes; 
forty  thousand  electors,  who  deposited  their  votes  for  one,  or  other,  of  the 
candidates  for  governor,  did  not  cast  them  at  all  on  that  most  interesting 
and  important  of  all  questions.  But,  notwithstanding  this,  the  amended 
constitution  has  been  proclaimed  by  your  executive,  and  recognised  by 
your  legislature,  and  by  the  people,  as  the  supreme  law  of  the  land.  This, 
gentlemen,  has  been  stigmatised  as  a  technical  rule  of  law,  a  fiction  and 
intendment  in  law.  It  is  sufficient  for  us,  gentlemen,  that  it  is  a  rule  of 
law.  We  must  not  be  wiser  than  the  law;  for  if  we  attempt  this,  we 
endanger  every  thing  we  hold  dear — our  life,  our  liberty,  our  property. 

Nor,  gentlemen,  can  we  know  any  thing  of  any  fancied  equity,  as  con- 
tradistinguished from  the  law.  The  law  is  the  equity  of  the  case,  and  it 
must  be  so  considered,  under  the  most  awful  responsibility,  by  this  court, 
and  this  jury.  In  my  opinion,  a  court  and  jury  can  never  be  better 
employed,  than  when  they  are  vindicating  the  safe  and  salutary  prin- 
ciples of  the  common  law. 

But  the  respondents  further  object,  that  the  design  of  the  New-school 
brethren  was  not  to  organize  a  General  Assembly  according  to  the  forms 
prescribed  by  the  constitution,  but  that  they  intended,  and  it  was  so 
understood  by  them,  to  effect  an  ex-parte  organization,  with  a  view  to  a 
peaceable  separation  of  the  Church.     If  this  was  the  intention,  and  was 


JUDGE  ROGERS'  CHARGE.  ^gj 

SO  understood  at  the  time,  the  house  which  assembled  in  the  First  Pres- 
byterian Church,  cannot  be  recognised  as  the  General  Assembly,  compe- 
tent to  appoint  trustees  under  the  charter.  Having  chosen  voluntarily  to 
leave  the  Church,  they  can  no  longer  be  permitted  to  participate  in  its 
advantages  and  privileges.  If  a  member,  or  a  number  of  individuals, 
choose  to  abandon  their  church,  they  must  at  the  same  time  be  content 
to  relinquish  all  its  benefits. 

But  this  is  a  question  of  fact,  which  you  must  decide.  In  this  part 
of  the  case,  the  burthen  of  proof  is  thrown  on  the  respondents.  They 
must  satisfy  you  that  such  was  the  intention  of  the  New-school  party  in 
organizing  the  house,  and  adjourning  to  the  First  Presbyterian  Church. 
But,  granting  that  the  motion  of  Mr.  Cleaveland  was  in  order,  that  Drs. 
Beman  and  Fisher,  and  the  clerks,  had  a  majority  of  votes,  that  the  inten- 
tion was  to  organize  the  General  Assembly,  and  that  they  did  not  intend 
an  ex-parte  organization,  the  respondents  say  that  such  was  the  precipita- 
tion and  haste  of  these  proceedings,  their  extraordinary  £^d  novel  charac- 
ter, the  noise,  tumult,  and  confusion,  that  they  and  the  Other  members  of 
the  house  had  no  opportunity  of  hearing  and  voting,  if  they  had  wished 
to  do  so,  and  that  therefore  this  is  an  attempt  at  organization,  which  is 
null  and  void. 

It  is  very  certain  that  if  individual  members  of  a  deliberative  assembly 
by  trick  and  artifice,  by  surprise,  noise,  tumult,  and  confusion,  carry  such 
a  question  as  this,  it  ought  not,  it  cannot  be  regarded.  The  members 
must  have  an  apportunity  to  debate,  to  vote,  if  they  desire  it,  and  for  this 
reason  it  was,  the  negative  question  must  be  put,  and  that  the  several  ques- 
tions must  be  reversed. 

It  will  be  for  you  to  say  whether  the  members  had  this  opportunity. 
To  this  part  of  the  case  I  request  your  particular  attention. 

If  you  believe  that  the  several  motions  were  made  and  reversed,  that 
they  were  carried  by  a  majority  of  affirmative  voices,  whatever  may  be 
your  opinion  of  the  relative  strength  of  two  parties  in  the  Assembly,  your 
verdict  must  be  for  the  relators.  I  hold  it  to  be  a  most  clear  proposition, 
that  silent  members  acquiesce  in  the  decision  of  the  majority.  It  is  of  no 
sort  of  consequence  for  what  reason  they  were  silent;  whether  from  a 
previous  determination  or  otherwise.  The  efiect  is  the  same,  provided 
they  had  an  opportunity  of  hearing  an<i  voting  on  the  question.  It  is  not 
necessary  that  all  should  hear  or  vote. 

If  persons  who  are  members  of  an  assembly,  by  surprise,  by  noise,  or 
violence,  carry  such  a  question — such  a  vote  cannot  be  considered  as  the 
deliberate  sense  of  the  assembly;  but  when  members  are  aware  of  the 
nature  of  the  proceedings  and  choose  to  treat  them  with  contempt,  or  to 
interrupt  the  business  themselves,  by  stamping,  noise,  talking,  cries  of 
order,  or  shame!  shame!  or  requesting  silence  with  a  view  to  interrup- 
tion, or  attending  to  other  business,  when  they  ought  to  be  attending  to 
this,  they  cannot  be  permitted  afterwards  to  allege  that  they  had  no  oppor- 
tunity to  vote.  They  cannot  take  advantage  of  their  own  wrong,  or  their 
own  folly.  In  such  a  case,  their  silence,  or  if  you  choose,  noise,  shall  be 
viewed  as  an  acquiescence  in  the  vote  of  the  majority.  But  when  mem- 
bers are  prevented  from  hearing  and  understanding  the  question  by  the 
noise  and  confusion,  or  by  the  indecent  haste  with  which  the  business  is 
conducted,  the  organization  is  not  such  as  can  give  it  any  legal  validity. 

61 


482  PRESBYTERIAN  CHURCH  CASE. 

It  is  of  no  consequence  whether  the  members  are  prevented  from  voting 
understandingly  on  the  question  by  the  persons  engaged  in  conducting 
the  business,  or  by  the  spectatol^s.  But  when  it  comes  from  the  mem- 
bers of  the  other  party,  they  shall  not  be  permitted  to  object,  when  they 
themselves  are  the  causes  of  the  difficulty. 

If  the  facts  be  so,  they  (the  members  of  the  Old-school)  did  not  hear, 
because  they  would  not  hear ;  they  did  not  vote  because  they  would  not 
vote.  They  caused  the  disorder,  and  let  them  reap  the  bitter  fruits  of 
their  injustice.  The  court,  and  you  gentlemen  of  the  jury,  have  nothing 
to  do  with  consequences;  with  fancied  majorities  and  minorities,  but  with 
majorities  legally  ascertained.  We  are  placed  at  this  bar  under  an  awful 
responsibility  to  do  justice,  without  regard  to  the  numerical  strength  of 
the  contending  parties. 

If  you,  gentlemen,  believe  that  the  questions  were  not  reversed,  that 
they  were  not  carried,  that  the  members  of  the  Assembly  had  not  an 
opportunity  of  hearing  and  voting  upon  them,  your  verdict  should  be  in 
favour  of  the  respondents.  But,  if  on  the  other  hand,  you  believed  they 
intended  to  organize  the  Assembly;  that  the  questions  were  severall}'' 
put;  that  the  noise,  tumult,  and  confusion  which  prevailed  in  the  Assem- 
bly, were  the  result  of  a  preconcerted  plan,  or  combination,  or  conspiracy 
between  the  clerks,  the  Moderator,  and  the  members  of  the  Old-school 
party,  to  sustain  the  unconstitutional  and  void  resolutions  of  1837,  which 
deprived  members  of  seats  to  which  they  were  justly  entitled,  your  ver- 
dict should  be  in  favour  of  the  relators. 

And  here  I  do  not  wish  to  be  understood  as  having  expressed,  or  even 
intimated  an  opinion  as  to  the  facts  of  the  case.  The  facts  are  for  you, 
the  law  is  for  the  Court. 

And  now,  gentlemen,  I  entreat  you,  as  you  shall  answer  to  God  at 
the  great  day,  that  you  discard  from  your  minds  all  partiality,  if  any  you 
have;  fear,  favour,  and  affection;  that  you  decide  this  interesting  cause 
according  to  the  evidence,  and  that  you  remember  that  the  law  is  part  of 
your  evidence.  The  Court,  and  you,  gentlemen,  are  placed  at  this  bar 
under  an  awful  responsibility  to  do  justice. 

After  receiving  the  charge  of  the  Court,  the  jury  retired,  and  in  about 
an  hour  returned,  bringing  in  a  verdict  for  the  plaintiff. 


SUPREME   COURT 
FOR  THE  EASTERN  DISTRICT  OF  PENNSYLVANIA. 


MARCH  TERM— 1839. 

The   Commonwealth  at   the  suggestion  of 
James  Todd,  and  others, 

vs. 
Ashbel  Green  and  others. 


JuIt/  Term,  183S. 
No.  60. 


On  motion  of  F.  W.  Hubbell  for  the  defendants,  the  court  grant  a  rule 
to  show  cause  why  a  new  trial  should  not  be  granted. 

Specifications  of  points  on  which  defendants  intend  to  rely,  in  support 
of  the  motion  for  a  new  trial. 

1.  His  honour,  the  judge,  erred  in  refusing  to  permit  the  defendants* 
counsel  to  cross-examine  the  plaintifis'  witnesses,  touching  a  plan  of  action, 
concerted  between  these  witnesses  and  others,  previous  to  the  17th  of 
May,  1838,  for  the  government,  &c.,  of  their  conduct,  in  or  on  the  occa- 
sion of  the  organization  of  the  General  Assembly  of  the  Presbyterian 
Church,  for  the  year  1838. 

2.  His  honour,  the  judge,  erred  in  refusing  to  permit  the  defendants  to 
give  evidence  of  the  existence  of  the  concert,  mentioned  in  the  first  point, 
and  to  explain  the  nature  and  character  thereof. 

3.  His  honour,  the  judge,  erred  in  not  charging  the  jury,  upon  certain 
points,  submitted  to  him  in  writing,  by  the  defendants'  counsel;  the  points 
so  submitted,  are  hereto  annexed. 

4.  His  honour,  the  judge,  erred  in  refusing  to  permit  the  defendants'  to 
give  evidence  that  the  churches  of  the  Synods,  which  were  disowned  in 
1837,  had  not  contributed  to  the  funds  under  the  control  of  the  General 
Assembly. 

5.  His  honour,  the  judge,  erred  in  not  permitting  the  defendants  to 
prove  the  existence  of  Congregational  or  mixed  churches,  within  the 
bounds  of  the  disowned  Synods,  and  in  connexion  with  those  Synods. 

6.  His  honour,  the  judge,  erred  in  not  permitting  the  defendants  to 
prove: — That  many  churches  and  ministers,  had  complied  with  the  terms, 
by  which  the  disowning  resolutions,  or  acts,  were  qualified: — that  they 
had  applied  to  the  Presbyteries  most  convenient  to  their  respective  loca- 
lities, and  had  been  admitted  into  them. 

7.  His  honour,  the  judge,  erred  in  permitting  the  plaintiffs'  concluding 
counsel,  to  read  passages  from  the  minutes  of  the  Old-school  General 
Assembly  of  1838,  which  had  not  been  given  in  evidence,  particularly, 
as  the  plaintiffs  had  objected  to  the  defendants'  reading  the  whole  of  these 
minutes  in  evidence,  and  this  objection  had  been  sustained  by  the  court. 

8:  His  honour,  the  judge,  erred  in  rejecting  the  deposition  of  Dr.  Eli= 


484  PRESBYTERIAN  CHURCH  CASE. 

phalet  Nott,  except  such  part  merely  as  narrated  the  transactions  that  took 
place  at  the  organization  of  the  General  Assembly  of  1838. 

9.  His  honour,  the  judge,  er'-ed  in  charging  the  jury,  that  the  acts  of 
the  General  Assembly  of  the  Presbyterian  Church,  of  the  year  1837,  by 
which  the  Synods  of  the  Western  Reserve,  Genesee,  Geneva,  and  Utica, 
and  their  component  parts,  were  disowned  or  declared  to  be  no  longer  in 
ecclesiastical  connexion  with  the  Presbyterian  Church  were  unconstitu- 
tional and  void. 

10.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  Plan  of 
Union  (so  called)  of  1801,  was  constitutional. 

11.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  the  two 
reasons  assigned  by  the  General  Assembly  of  1837,  declaring  that  Plan 
of  Union  to  be  unconstitutional,  were  not  sufficient  reasons;  these  reasons 
were  as  follows,  viz: 

First.  Because  they  were  important  standing  rules,  and  adopted  without 
being  submitted  to  the  Presbyteries. 

Secondly.  Because  the  General  Association  of  Connecticut  was  invested 
with  no  power  to  legislate  in  such  cases,  and  especially  to  enact  laws  to 
regulate  churches  not  within  their  limits. 

12.  His  honour,  the  judge,  erred  in  charging  the  jury  that  said  agree- 
ment or  Plan  of  Union,  did  not  come  within  the  words  or  spirit  of  that 
clause  of  the  constitution  of  the  Presbyterian  Church,  which  provides: 
"  that  before  any  overture  or  regulation  proposed  by  the  General  Assem- 
bly to  be  established  as  constitutional  rules,  shall  be  obligatory  on  the 
churches,  it  shall  be  necessary  to  transmit  them  to  all  the  Presbyteries, 
and  to  receive  the  returns  of  at  least  a  majority  of  them,  in  writing,  appro- 
ving thereof."  Nor  was  it  (his  honour  charged  the  jury)  in  conflict  with 
the  constitution,  before  its  amendment  in  1821,  which  provides,  "that  no 
alteration  shall  be  made  in  the  constitution,  unless  two-thirds  of  the  Pres- 
byteries under  the  care  of  the  General  Assembly,  agree  to  alterations  or 
amendments  proposed  by  the  General  Assembly.'' 

13.  His  honour,  the  judge,  erred  in  charging  the  jury,  "  That  the  Plan 
of  Union"  was  a  regulation  made  by  competent  parties;  and  not  intended 
by  either  as  constitutional  rules;  nor,  was  it  obligatory  on  any  of  the 
Presbyterian  Churches  in  their  connexion. 

14.  His  honour,  the  judge,  erred  in  charging  the  jury,  "  That  that  part 
of  the  agreement,  (Plan  of  Union)  that  the  standing  committee  of  the 
Congregational  Churches,  consisting  partly  of  Presbyterians,  and  partly 
of  Congregationalists,  may  or  shall  attend  the  Presbytery,  &c.,  and  may 
have  the  same  right  to  sit  and  act  in  the  Presbytery,  as  a  ruling  elder, 
was  intended  as  a  safeguard  to  the  rights  of  all  the  parties  to  be  afiected 
by  it." 

15.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  "  I  view  it" 
(Plan  of  Union,)  "  as  a  matter  of  discipline,  and  not  of  doctrine;  the  effect 
of  which  is  to  exempt  those  members  of  the  different  communions  who 
adopted  it,  from  the  censures  of  the  church  to  which  they  belonged;  and 
particularly  the  clerical  portion  of  them." 

16.  His  honour,  the  judge,  erred  in  not  permitting  the  defendants  to 
prove  that  there  were,  at  the  time  of  the  disowning  acts,  numbers  of  Con- 
gregational churches,  and  churches  on  the  mixed  plan,  within  the  bounds 
of  those  Synods  so  disowned;  and  that  these  churches  were  represented 


REASONS  FOR  A  NEW  TRIAL.  4g5 

in  the  Presbyteries  composing  these  Synods,  by  unordained,  lay  dele- 
gates. 

17.  His  honour,  the  judge,  erred  in  not  permitting  the  defendants  to 
prove,  that  at  the  date  of  the  disowning  acts,  there  were,  within  the  bounds 
of  the  disowned  Synods,  numerous  churches  on  the  mixed  and  Congre- 
gational plan;  formed  under  the  Act  of  Union  of  1801,  and  connected,  by 
means  of  that  act,  with  the  Presbyterian  Church. 

18.  His  honour,  the  judge,  erred  in  charging  the  jury,  "that  after  an 
acquiescence  of  near  forty  years,  and  particularly,  after  the  adoption  by 
the  Presbyteries,  of  the  amended  constitution  of  1821,  the  Plan  of  Union 
is  not  now  open  to  objections.  The  plan  has  been  recognised  by  the 
Presbyteries  at  various  times,  and  in  different  manners,  under  their  old 
and  amended  constitution.     It  has  been  acted  upon   by  them,  and  the 

'General  Assembly  in  repeated  instances;  and  is  equally  as  obligatory  as 
if  it  had  received  the  express  sanction  of  the  Presbyteries,  in  all  forms 
known  to  the  constitution." 

19.  His  honour,  the  judge,  erred  in  taking  from  the  jury  the  question 
of  acquiescence  by  the  Presbyteries,  in  the  Plan  of  Union  of  1801.  The 
facts  of  recognition,  or  forbearance,  which  enter  into  the  idea  of  acqui- 
escence, were  facts  for  the  jury.  To  support  the  position  of  acquiescence, 
it  was  necessary  that  the  Presbyteries  which  were  declared  to  have  acqui- 
esced, should  have  had  full  knowledge,  or  the  means  of  knowledge,  that 
there  were  churches  and  Presbyteries  formed  on  the  Plan  of  Union,  and 
claiming  rights  under  the  Plan  of  Union.  The  existence  of  such  know- 
ledge, or  means  of  knowledge,  is  ^fact  for  the  determination  of  the  jury. 

20.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  Plan  of 
Union  did  not  provide  that  the  delegates  from  standing  committees  from 
mixed  churches,  under  the  Plan  of  Union  to  the  Presbyteries,  should 
exercise  the  same  rights  as  ruling  elders  in  those  Presbyteries. 

21.  His  honour,  the  judge,  erred  in  charging  the  jury  that  it  was  unjust 
in  the  General  Assembly  to  repeal  the  Plan  of  Union,  without  saving  the 
rights  of  existing  ministers  and  churches. 

22.  His  honour,  the  judge,  erred  in  charging  the  jury  that  there  had 
been  acquiescence  in  the  rights  claimed  under  the  Plan  of  Union  for 
thirty-six  years;  there  being  no  proof  that  any  of  the  churches  formed 
upon  that  Plan,  had  existed  thirty-six  years. 

23.  His  honour,  the  judge,  erred  in  charging  the  jury  in  regard  to  the 
fourth  resolution,  which  provides  the  method  by  which  churches,  minis- 
ters and  Presbyteries,  within  the  disowned  Synods,  who  are  strictly  Pres- 
byterian, in  doctrine  and  order,  may  continue  their  connexion  with  the 
General  Assembly,  and  the  Presbyterian  Church,  inasmuch  as  he  repre- 
sents that  it  only  provides  for  Presbyteries,  and  omits  the  provisions  in 
favour  of  churches  and  ministers. 

24.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  resolu- 
tions of  1837,  disowning  the  four  Synods,  were  in  the  nature  of  judicial 
proceedings,  and  that  the  Presbyteries  within  the  four  Synods,  were 
treated  as  criminals  and  offenders  against  the  rules,  regulations,  and  doc- 
trines of  the  church. 

25.  His  honour,  the  judge,  erred  in  charging  the  jury  in  regard  to  the 
resolutions  of  1837,  "  That  the  proper  steps  be  now  taken  to  cite  to  the 
bar  of  the  next  Assembly,  such  inferior  judicatories  as  are  charged,  by 


486  PRESBYTERIAN  CHURCH  CASE. 

common  fame,  with  irregularities,  &c. ;"  that  nothing  further  appears  to 
have  been  done  in  this  matter  in  the  General  Assembly. 

26.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  proceed- 
ings of  the  General  Assembly  of  1837,  in  regard  to  four  Synods,  were 
not,  nor  was  any  part  of  them,  conclusive  in  this  collateral  inquiry. 

27.  His  honour,  the  judge,  erred  in  charging  the  jury  that  to  effect  the 
objects  proposed  by  the  disowning  resolution  of  1837,  it  was  necessary 
that  citations  should  have  issued  to  the  Presbyteries  within  the  bounds  of 
these  Synods;  and  that  all  the  other  judicial  process  prescribed  in  the 
book  of  discipline,  should  have  been  resorted  to. 

28.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  disown- 
ing of  these  Synods,  was  depriving  electors  of  the  right  to  vote;  and  in 
declaring  that  it  was  not  distinguishable  from  an  attempt  by  the  legisla- 
ture of  Pennsylvania,  by  resolution,  or  otherwise,  to  deprive  one  of  the 
jurors  of  his  right  as  an  elector. 

29.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  "The  Pres- 
byteries, by  the  constitution  of  the  church,  are  the  electors  of  the  Gene- 
ral Assembly;  their  right  has  been  taken  away  without  trial,  and,  so  far 
as  we  know,  without  the  examination  of  a  single  witness." 

30.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  it  is  now 
immaterial  whether  the  Presbyteries  in  the  disowned  Synods  have  Con- 
gregational churches  in  their  connexion  or  not;  and  that  it  was  possible, 
if  a  trial  had  been  had,  that  fact  might  have  been  disproved;  "at  any  rate, 
it  would  be  a  singular  reason  for  ejecting  a  whole  Presbytery,  because  a 
single  church  was  governed  without  the  benefit  of  ruling  elders." 

31.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  although  he 
was  of  opinion  that  the  introduction  of  lay  delegates  from  Congregational 
Establishments,  into  the  judicatories  of  the  Presbyterian  Church,  was  a 
violation  of  the  fundamental  principles  of  Presbyterianism,  and  in  con- 
travention of  the  act  of  the  legislature  of  Pennsylvania,  incorporating  the 
trustees  of  the  Church;  and  that  any  act  permitting  such  introduction, 
would  be  void,  although  submitted  to  the  Presbyteries;  yet  he  was  unable 
to  see  the  bearing  of  this  proposition  on  the  matter  in  issue  in  this  cause. 

32.  His  honour,  the  judge,  erred  in  c-harging  the  jury,  that,  although 
the  General  Assembly  is  entitled  to  decide  on  the  right  claimed  by  any 
one  to  a  seat  in  that  body,  unlike  legislative  bodies,  their  decision  is  the 
subject  of  revision;  and  that  ecclesiastical  judicatories  are  subject  to  the 
control  of  the  law. 

33.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  a  manda- 
mus would  not  reach  this  case;  for,  before  the  remedy  could  be  applied, 
the  General  Assembly  would  be  dissolved,  and  it  would  be  impossible  to 
foresee  whether  the  next  Assembly  would  persist  in  their  illegal  and 
unconstitutional  course  of  conduct. 

34.  His  honour,  the  judge,  erred  in  permitting  evidence  to  be  given  on 
the  issue  joined  in  this  case,  of  the  proceedings,  actings,  and  doings  of 
the  General  Assembly  of  the  year  1837. 

35.  His  honour,  the  judge,  erred  in  charging  the  jury,  "That  the  com- 
mittee of  commissions  grossly  erred  in  refusing  to  put  the  names  of  the 
commissioners  from  the  four  Synods,  on  the  list  of  rejected  applications. 
It  was  their  duty  to  decide  on  the  propriety  of  the  application,  and  to 
refer  the  decision  to  the  further  action  of  the  house,  by  adding  their  names 


REASONS  FOR  A  NEW  TRIAL.  4§7 

to  the  roll  of  members  whose  commissions  had  been  examined  and 
rejected."  "It  is,  therefore,  the  opinion  of  the  Court,  that  in  this,  there 
was  a  palpable  violation  of  the  rights  of  the  proscribed  commissioners." 

36.  His  honour,  the  judge,  erred  in  referring  it  to  the  jury  to  decide, 
whether  the  proper  course  of  those  whose  commissions  had  been  rejected 
by  the  committee  of  commissions,  was  to  have  the  same  referred  to  the 
committee  of  elections  or  not. 

37.  His  honour,  the  judge,  erred  in  charging  the  jury,  "  That  Dr. 
Elliott's  declining  to  put  Dr.  Mason's  appeal,  was  a  dereliction  of  duty — 
a  usurpation  of  authority,  which  called  for  the  censure  of  the  house; — 
that  he  could  not  then  allege,  that  there  was  no  house  to  which  the  appeal 
could  be  taken.  At  that  time,  the  clerks  had  made  their  report,  and  it 
was  ascertained  what  members  had  a  right  to  vote." 

33.  His  honour,  the  judge,  erred  in  repeatedly  stating  to  the  jury, 
"  That  sixty  thousand  communicants  had  been  cut  oflf  from  the  body  of 
the  Presbyterian  Church,"  there  not  being  any  evidence  to  that  effect. 

39.  His  honour,  the  judge,  erred  iii  committing  to  the  jury,  to  find, 
whether  Dr.  Elliott  "  was  performing  his  duty  as  the  presiding  officer  of 
the  house,  or  was  he  carrying  out  the  unconstitutional  and  void  proceed- 
ings of  the  General  Assembly  of  1S37." 

40.  His  honour,  the  judge,  erred  in  charging  the  jury,  "that  there  is 
nothing  in  the  constitution  of  the  Church  which  restrains  or  impairs  the 
right  of  the  house,  to  depose  their  Moderator  for  sufficient  cause;  whether 
he  be  Moderator  for  the  session  or  for  the  organization." 

41.  His  honour,  the  judge,  erred  in  charging  the  jury,  "that  the  house 
was  not  restricted  in  their  choice  of  a  Moderator,  to  a  Moderator  of  a 
former  year  who  may  be  present:  that  rule  applies  only  to  ordinary 
cases,  when  the  Moderator  of  the  last  year  is  not  in  attendance,  or  is 
unable,  from  some  physical  reason,  to  discharge  the  duties  of  the  office. 
It  does  not  apply  to  the  peculiar  and  extraordinary  circumstances  of  this 
case." 

42.  His  honour,  the  judge,  erred  in  charging  the  jury,  "That  Mr. 
Cleaveland  had  a  right  to  make  the  motion  that  Dr.  Beman  take  the 
chair — that  said  question  need  not,  under  the  circumstances  of  the  case, 
be  put  by  the  clerks,  or  one  of  them — that  the  question  amounted  to  this, 
viz.,  that  Dr.  Elliot,  who  occupied  the  chair,  should  be  deposed,  and  that 
Dr.  Beman  should  be  elected  in  his  stead — that  it  was  a  pertinent  ques- 
tion, easily  understood,  and  not  calculated  to  mislead  the  dullest  member 
of  the  Assembly.  It  was  in  a  proper  form  and  in  a  proper  time:  for, 
gentlemen,  it  was  not  necessary,  to  precede  it  by  a  motion,  that  the  house 
should  now  proceed  to  the  choice  of  a  Moderator.  All  things  requisite, 
are  substantially  comprised  in  the  motion  which  was  made." 

43.  His  honour,  the  judge,  erred  in  charging  the  jury,  "that  the  refusal 
of  the  Moderator  to  put  the  appeal  was  a  breach  of  privilege,  in  which 
not  only  Dr.  Mason,  but  the  whole  house  was  interested:  they  might 
have  proceeded  against  him  for  a  breach  of  privilege,  or  they  might 
depose  him  on  the  ground  of  partiality  and  injustice." 

44.  His  honour,  the  judge,  erred  in  charging  the  jury,  "  there  was 
nothing  in  the  question  or  in  the  manner  of  putting  it  which  was  disor- 
derly, or  which  ought  to  have  led  to  disorder." 


488  PRESBYTERIAN  CHURCH  CASE. 

45.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  "  the  motion 
of  Mr.  Cleaveland,  and  the  subsequent  resolutions  or  motions,  were  the 
consequence  of  the  decision  of  the  Moderator,  that  Dr.  Mason's  motion 
was  out  of  order,  and  refusal  of  the  Moderator  to  allow  an  appeal  to  the 
house.  The  right  of  members  was  unjustly  invaded,  and  from  this 
moment  it  became  a  question  of  privilege,  which  overrides  all  questions 
whatever,  A  question  of  privilege  is  always  in  order,  to  which  privi- 
leged questions,  such  as  the  appointment  of  a  Committee  of  Elections, 
might  give  way.  The  cry,  therefore,  of  "Order!"  from  the  Moderator, 
or  from  any  member  whatever,  under  such  circumstances,  would  be  dis- 
orderly." 

46.  His  honour,  the  judge,  erred  in  charging  the  jury,  that  "Dr.  Mason 
had  the  right  to  make  his  motion  before  the  appointment  of  the  Com- 
mittee of  Elections.  Indeed,  I  know  of  no  other  mode  of  getting  this 
question  before  the  Committee  of  Elections,  except  by  bringing  it  before 
the  house,  who  might  either  decide  it  themselves,  or  if  they  thought 
proper,  refer  it  to  that  committee,  on  whose  report  it  would  again  come 
before  the  house." 

47.  His  honour,  the  judge,  erred  in  charging  the  jury,  "  that  the  fact 
that  Mr.  Cleaveland  put  the  question,  instead  of  the  Moderator:  the  cries 
of  '  Order!'  when  this  was  in  progress,  the  omission  of  some  of  the  forma- 
lities usually  observed  when  there  is  no  contest,  and  no  excitement;  such 
as  standing  in  the  aisle,  instead  of  taking  the  chair  occupied  by  the  Mode- 
rator; not  using  the  usual  insignia  of  office,  &c. ;  putting  the  question 
from  an  unusual  place;  and  the  short  space  of  time  which  was  consumed 
in  the  organization  of  the  house;  and  three  or  more  members  standing  at 
the  same  time;  would  not  vitiate  the  organization,  if  you  should  be  of 
opinion,  that  this  became  necessary,  from  the  illegal  and  improper  con- 
duct of  the  adverse  party." 

48.  His  honour,  the  judge,  erred  in  charging  the  jury,  "  that  this  part 
of  the  respondents'  case,  rests  upon  standing  rules  that  were  not  then  in 
existence.     You  will  recollect  that  each  Assembly  adopts  its  own  rules." 

49.  His  honour,  the  judge,  erred  in  charging  the  jury,  "that  the  roll  of 
members  reported  by  Mr.  Krebs,  and  Dr.  McDowell  was  the  roll  of  the 
house.  As  such,  it  was  virtually  in  the  possession  of  the  clerks  after- 
wards chosen,  provided  they  were  regularly  and  duly  elected." 

50.  His  Honour,  the  judge,  erred  in  charging  the  jury,  "  that  the  exist- 
ence of  a  house  competent  to  perform  all  the  functions  of  the  General 
Assembly,  does  not  depend  upon  the  observance  or  non-observance,  of 
the  standing  orders  of  the  house.  You  must  take  this  opinion  with 
qualifications,  &c." 

51.  His  honour,  the  judge,  erred  in  charging  the  jury,  "in  application 
to  this  case,  that  affirmative  testimony  is  more  to  be  relied  on,  than  nega- 
tive testimony." 

52.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  proceed- 
ings of  the  General  Assembly  of  1837,  had  any  bearing  or  operation  on 
the  General  Assembly  of  1838,  or  that  any  design,  by  any  portion  of  the 
members  of  the  Assembly  of  1838,  to  carry  into  effect  the  acts  of  the 
Assembly  of  1837,  could  have  any  effect  upon  the  organization  of  1838, 
or  confer  any  rights  upon  any  person  whatever  to  violate  or  set  aside 
rules  of  order. 


REASONS  FOR  A  NEW  TRIAL.  4§9 

53.  The  verdict  of  the  jury  is  not  a  proper  finding  upon  the  point  in 
issue  between  the  parties. 

54.  The  respondents  having  pleaded  severally,  to  the  information  or 
suggestion  filed  in  this  case,  and  having  different  defences  to  the  same,  the 
verdict  is  erroneously  given  against  them  jointly. 

55.  The  verdict  of  the  jury  is  against  law  and  the  evidence. 

56.  His  honour,  the  judge,  erred  in  not  putting  the  position  of  the 
defendants,  in  regard  to  the  design  of  the  "New-school  party,"  fully  to 
the  jury.  The  defendants  contended,  among  other  things,  that  the 
"  New-school  party"  designed  to  form  an  organization,  in  despite  of  and 
against  the  will  of  the  majority,  however  expressed;  and  that  Mr.  Cleave- 
land's  motion  was  not  addressed  to  them,  and  had  they  voted  negatively 
on  the  same,  their  votes  would  not  have  been  regarded. 

57.  His  honour,  the  judge,  erred  in  charging  the  jury  that  the  real 
state  of  the  parties  as  to  majority  or  minority,  was  in  no  respect  to  be 
regarded,  that  the  majority  was  only  to  be  known  by  the  vote. 

(Signed,)  F.  W.  HUBBELL,  for  Defendants. 

March  29,  1839. 


Jidditional  Specifications  of  Points,  on  which  the  Defendants  will 
rely  on  the  motion  for  a  new  trial. 

1.  The  resolutions  adopted  by  the  General  Assembly  of  1837,  were 
within  its  jurisdiction,  as  an  ecclesiastical  tribunal,  and  were  duly  passed; 
and  they  are  not  subject  to  the  control  or  decision  of  the  courts  of 
justice. 

2.  The  language  of  the  moderator  in  the  preliminary  Assembly  of  1 837, 
in  addressing  the  Rev.  Mr.  Squier,  was  not  precisely  or  even  substantially 
the  language  quoted  by  the  judge. 

3.  The  judge,  erred  in  omitting  to  give  due  effect  (in  the  proceedings 
of  1838,)  to  the  fact,  that  the  members  did  not  understand,  and  could  not 
hear  the  propositions,  which  are  said  to  have  been  submitted  to  them;  and 
in  pronouncing  the  call  to  order  by  individuals  of  the  "  Old-school  party" 
itself  out  of  order. 

4.  The  evidence  was  clear,  positive  and  unquestionable,  that  no  oppor- 
tunity was  given  to  the  members  who  attended  in  1838,  to  debate  the 
propositions  that  are  said  to  have  been  introduced;  yet  the  judge  with- 
drew the  attention  of  the  jury  from  the  true  point,  which  was,  that  there 
being  no  opportunity  for  debate,  whether  the  proceedings  were  thereby 
vitiated. 

5.  The  judge  omitted  to  charge,  that  in  a  scene  of  tumult  and  disor- 
der, such  as  was  admitted  on  all  sides  to  exist,  there  was  necessarily  a  sus- 
pension of  effectual  measures,  and  that  any  thing  which  occurred  at  such  a 
juncture  was  without  operation  or  effect. 

6.  The  judge  charged,  that  if  the  organization  of  the  ^<  New-school 
Party"  was  intended  to  be  ex  parte,  with  a  view  to  a  separation,  the 
General  Assembly  so  organized,  could  not  be  recognised,  &c.;  yet  he 
refused  to  permit  evidence  to  be  given  by  the  defendants  of  the  circum- 


490  PRESBYTERIAN  CHURCH  CASE. 

stances  that  attended  that  organization,  and  of  the  intention  of  the  "  New- 
school"  party,  as  manifested  hy  their  preliminary  acts  and  declarations. 

7.  The  judge  erred  in  declaring,  that  if  the  members  had  an  opportu- 
nity of  hearing  and  voting,  the  majority  of  those  entitled  to  vote,  and 
who  actually  voted,  is  to  be  counted;  and  that  it  is  of  no  sort  of  conse- 
quence, for  what  reason  the  silent  members  are  silent.  Whereas,  the 
silence  may  have  proceeded  from  an  inability  to  know  what  were  the 
measures  proposed,  and  that  inability  produced  by  the  precipitancy  and 
disorder  of  the  "New-school"  party:  and  the  omission  to  vote  might 
have  proceeded  from  the  calls  to  "  order"  on  the  part  of  a  presiding  oflicer 
yet  occupying  the  chair. 

8.  The  burthen  of  proof  rested  on  the  party  objecting  to  the  resolu- 
tions of  1837,  to  show  the  invalidity  of  these  resolutions,  every  fair  pre- 
sumption being  in  their  favour;  yet  no  proof  whatever  was  given  of  the 
facts  alleged  in  the  protest  of  the  "  New-school"  party,  as  sufficient  to 
impair  the  resolutions. 

(Signed,)  F.  W,  HUBBELL,  For  Defendants. 


Points  upon  which  the  Judge  was  asked  to  charge  the  Jury. 

His  honour,  the  judge,  is  respectfully  requested  to  charge  the  jury  on 
the  following  points: 

That  the  act  of  the  General  Assembly  of  the  Presbyterian  Church  for 
the  year  1837,  abrogating  the  Plan  of  Union  of  1801,  was  constitutional 
and  valid. 

That  the  act  of  that  Assembly  declaring  the  Synod  of  the  Western 
Reserve  not  to  be  a  portion  of  the  Presbyterian  Church,  was  within  the 
constitutional  powers  of  the  General  Assembly,  and,  therefore,  conclusive, 
and  not  capable  of  being  impeached  in  this  collateral  inquiry. 

That  the  act  of  that  Assembly  declaring  the  Synods  of  Utica,  Genesee, 
and  Geneva,  and  their  constituent  parts,  to  be  out  of  the  ecclesiastical 
connexion  of  the  Presbyterian  Church  of  the  United  States  of  America; 
and  that  they  are  not,  in  form  or  fact,  an  intregal  portion  of  the  said 
church,  was  within  the  constitutional  powers  of  the  General  Assembly, 
and,  therefore,  conclusive;  and  not  capable  of  being  impeached  in  this 
collateral  proceeding. 

That  the  General  Assembly  of  the  Presbyterian  Church  is  entitled  to 
decide  upon  the  right  claimed  by  any  one  to  a  seat  in  that  body,  or  in 
other  words,  on  any  claim  of  membership. 

That  the  General  Assembly  of  1801,  being  a  representative  or  delega- 
ted body,  and  a  party  to  the  arrangement,  called  "  the  Plan  of  Union"  of 
1801,  any  of  the  succeeding  General  Assemblies,  who  are  affected  in  the 
exercise  of  their  powers  by  that  arrangement,  are  entitled  to  declare  that 
arrangement  void,  and  so  treat  it,  whenever  it  bears  upon  any  of  the  acts 
or  doings  of  these  General  Assemblies;  provided  the  General  Assembly 
of  1801  exceeded  the  authority  delegated  to  it,  by  entering  into  that 
arrangement.  And  this,  independently  of  the  question,  whether  the 
General  Assembly's  powers  be  judicial  or  legislative. 


REASONS  FOR  A  NEW  TRIAL.  491 

That  the  General  Assembly  having  the  power  to  determine  on 
the  right  or  claim  of  membership,  whenever  the  right  of  member- 
ship is  claimed  under  the  "  Plan  of  Union,"  the  General  Assembly  has 
a  right  to  treat  that  "Plan  of  Union"  as  void,  and  to  refuse  seats  to,  or 
to  deprive  all  such  persons  of  their  seats  who  claim  under  that  "  Plan  of 
Union." 

When  the  constituent,  viz.  a  Presbytery,  is  composed  in  part  of  mate- 
rials furnished  by  the  "Plan  of  Union,"  or  of  other  unconstitutional 
materials,  or  in  other  words,  when  it  is  composed  partly  of  unordained 
lay  delegates  from  Congregational  Churches,  then  the  General  Assembly, 
as  incidental  to  the  power  of  judging  of  the  qualifications  of  those  claim- 
ing membership,  is  entitled  to  require  such  Presbyteries  to  expurge  these 
unconstitutional  materials. 

That  the  introduction  of  unordained  lay  delegates  from  Congregational 
Establishments  into  the  judicatories  of  this  Presbyterian  Church,  was  a 
violation  of  the  fundamental  principles  of  Presbyterianism;  and  in  con- 
travention of  the  act  of  the  legislature  of  Pennsylvania,  incorporating  the 
Trustees  of  this  Church;  that  any  act  permitting  such  introduction,  would 
therefore  have  been  void,  although  submitted  to  the  Presbyteries. 

That  the  "  Plan  of  Union"  contemplated  but  a  temporary  aid  to  the 
churches  formed  under  it,  and  guaranteed  to  them  no  continued  connexion 
with  the  Presbyterian  Church,  unless  they  adopted  its  discipline  and  form 
of  government.  There  is,  therefore,  no  breach  of  faith,  in  refusing  to 
such  churches  a  further  continuance  of  connexion. 

That  the  body  which  held  its  sessions  in  the  First  Presbyterian  Church, 
in  the  spring  of  1838,  have  by  their  own  acts  acknowledged  the  conti- 
nued existence  of  the  General  Assembly  of  1837,  up  to  its  formal  disso- 
lution. 

These  acts  of  acknowledgment  are, 

1st.  By  organizing  at  the  time  and  place  fixed  by  the  decree  of  that 
body,  on  the  last  day  of  its  session. 

2dly.  By  recognising  the  validity  of  an  election  of  trustees  by  that 
body,  after  the  Synod  of  the  Western  Reserve  had  been  disowned. 

That  the  acts  of  the  General  Assembly  of  1837,  being  powerless  to 
render  void  the  organization  of  1838,  are  foreign  to  the  issue  now  trying; 
except  so  far  as  the  defendants  might  have  invoked  their  aid,  to  explain 
or  justify  the  acts  of  the  committee  of  commissions,  in  forming  the  roll 
of  1838. 

The  General  Assembly  of  1838,  did  not  reject  the  delegates  or  commis- 
sioners from  the  four  disowned  Synods;  and  did  not,  in  any  wise,  recog- 
nise or  adopt  these  disowning  acts  of  the  General  Assembly  of  1837. 

The  committee  of  commissions  for  the  year  1838,  possessed  the  power, 
under  the  standing  rules  of  1826,  to  determine  on  the  constitutionality  of 
the  commissions  presented  to  them;  and  to  refuse  to  put  them  on  the  roll 
for  that  reason.  That,  in  the  exercise  of  this  power,  they  are  only  amen- 
able to  the  General  Assembly;  and  the  propriety  of  their  decisions  can 
only  be  reviewed  by  that  body. 

That,  by  the  standing  rules  of  the  General  Assembly,  (vide  Rules  of 
1826,)  the  commissions  which  were  rejected  by  the  committee  of  com- 
missions, must  be  referred  to  a  committee  of  elections. 

That,  by  the  same  standing  rules,  the  first  business  of  the  General 


492  PRESBYTERIAN  CHURCH  CASE. 

Assembly,  after  the  Assembly  is  constituted  with  prayer,  is,  to  hear  the 
report  of  the  committee  of  commissions  on  the  roll. 

That  no  commissioner  has  a  right  to  vote,  or  otherwise  participate  in 
the  business  of  the  house,  until  his  name  is  so  reported. 

That  until  such  report  is  made,  there  is  no  house  to  transact  any  busi- 
ness, or  to  entertain  any  motions  or  appeals. 

That  the  motion  of  Mr.  Patton  being  made  before  the  committee  of 
commissions  had  reported,  was  out  of  order,  irregular,  and  nugatory;  as 
was  likewise  his  appeal,  there  being  no  house  to  entertain  the  motion  or 
the  appeal. 

That  the  proclamation  or  call  of  the  moderator,  for  any  other  commis- 
sions which  had  not  been  presented  to  the  committee  of  commissions,  was 
part  of  the  process  for  forming  the  roll;  and  the  report  of  that  committee 
cannot  be  considered  as  made,  until  all  commissioners  had  the  oppor- 
tunity afforded  by  that  proclamation,  of  presenting  their  commissions  to 
this  committee. 

That  Dr.  Erskine  Mason's  motion  was  out  of  order, 

1st.  Because  an  interruption  of  this  proclamation  not  being  rissponsive 
to  it,  as  the  commissions,  which  he  offered,  had  been  presented  to  the 
committee  of  commissions. 

2dly.  Because  the  report  on  the  roll  was  not  complete,  until  those 
called  by  the  proclamation  of  the  moderator,  had  the  opportunity  of  being 
enrolled. 

3dly.  Because  the  first  business  of  the  house,  after  the  report  of  the 
committee  of  commissions,  is,  by  the  standing  rules  of  1S26,  to  appoint 
a  committee  of  elections. 

His,  Dr.  Mason's  appeal,  was  nugatory,  until  the  moderator's  procla- 
mation had  been  answered  to,  and  time  had  been  given  for  that  purpose; 
for,  until  then,  the  roll  was  not  completed.  Had  the  appeal  been  put  to 
the  house,  Joshua  Moore,  and  it  might  have  been,  others  who  had  undis- 
puted commissions,  and  which  they  were  in  the  act  of  presenting,  would 
have  been  excluded  from  voting  on  that  appeal. 

If  the  refusal  to  put  Dr.  Mason's  appeal  was  wrong,  it  was  a  breach  of 
that  member's  privilege;  and  the  remedy  was,  by  a  proceeding  against 
the  moderator,  on  a  charge  of  breach  of  privilege.  That  the  motion  of 
Mr.  Cleaveland  can,  in  no  sense,  be  considered  such  proceeding;  for,  in 
addition  to  its  want  of  form,  the  charge  made  was  the  refusal  to  admit  the 
commissioners  from  the  disowned  Synods,  and  not  the  refusing  to  put 
the  appeal.  If  the  moderator  erred  in  declining  to  put  the  question  sub- 
mitted to  him  by  Dr.  Mason,  it  was  a  breach  of  privilege  on  the  part  of 
the  moderator,  and  authorized  proceedings  against  him,  as  in  other  cases 
of  breach  of  privilege;  but  did  not  authorize  Dr.  Mason,  or  any  other 
member,  to  assume  or  exercise  the  functions  of  the  moderator,  in  doing 
that  which  he  had  declined  to  do;  and  that  Mr.  Cleaveland's  conduct  was 
a  usurpation  of  those  functions,  it  belonging  to  the  moderator  alone  to  put 
motions.  Mr.  Squier's  motion,  or  application,  was  properly  treated  by 
the  moderator,  as  his  name  not  having  been  enrolled,  he  had  no  status^ 
or  right  upon  the  floor  of  the  house:  he  should  have  procured  an  enrolled 
member  to  make  the  motion  for  him. 

Mr.  Cleaveland's  motion  was  nugatory,  void,  and  a  mere  disorder, 
which  neither   the  Assembly,  nor  any  meml)er  thereof,  was  bound  to 


REASONS  FOR  A  NEW  TRIAL,  493 

notice;  and,  being  a  mere  disorder,  it  could  be  tbe  foundation  of  no  sub- 
sequent, regular  action,  and  that  for  many  reasons,  viz. 

1st.  Because  there  was  no  error,  crime,  or  misconduct  in  the  Assem- 
bly, or  its  officers,  to  justify  it. 

2d\y.  It  professed  to  proceed  on  the  false  position,  that  certain  mem- 
bers had  been  refused  their  seats. 

3dly.  It  was  not  put  by  the  proper  officers:  i.  e.,  if  not  by  the  mode- 
rator, by  the  clerk. 

4thly.  It  was  made  and  persisted  in,  under  or  after  a  call  to  order. 

5thly.  It  was  designed  and  intended,  and  prbfessed  to  be  a  revolu- 
tionary motion,  organizing  a  secession. 

6thly.  It  was  unintelligible,  from  its  indirection.  The  purpose  is  now 
.said  to  be,  to  remove  Dr.  Elliott,  for  a  misdemeanor  in  office;  but  the 
motion  made  was  to  put  Dr.  Beman  in  the  chair,  which  did  not  express 
the  true  purport  of  the  proceeding;  and  was,  therefore,  deceptious  and 
misleading. 

7thly.  It  was  sudden,  unexpected,  and  unusual,  and  gave  the  members 
no  opportunity  of  understanding  its  meaning,  purpose,  or  effect. 

Sthly.  It  having  been  put  from  an  unusual  place,  and  not  by  an  officer 
of  the  house,  it  is  incumbent  upon  those  who  rely  upon  the  rule,  that 
silence  is  an  affirmative  vote,  to  show  that  every  member  present  had  a 
full  opportunity  of  hearing. 

9thly.  It  was  put  and  persisted  in,  after  and  during  a  motion  to  appoint 
a  committee  of  elections,  which  by  a  standing  order  or  rule  of  the  Assem- 
bly, was  to  be  the  Jirst  business  of  the  house  after  the  report  of  the  com- 
mittee of  commissions  on  the  roll. 

lOthly.  The  preface  by  which  it  was  introduced,  professed  to  address 
it  to  a  portion  of  the  commissioners  of  the  General  Assembly,  and  pro- 
fessed to  be  an  interruption  of  proceedings,  then  regularly  p7'ogressing. 
If  it  were  really  intended  to  be  addressed  to  the  whole  house,  then  its 
terms  were  deceptive  and  fraudulent,  and  cannot  affect  those  who  did  not 
vote  upon  the  same. 

llthly.  The  question  not  being  reversed,  or  if  reversed,  done  so  sud- 
denly and  precipitately,  and  so  immediately  followed  by  another  motion, 
as  to  give  the  dissentients  no  opportunity  to  vote,  the  vote  upon  it  can  in 
nowise  be  considered  the  act  of  the  General  Assembly. 

1  Sthly.  It  being  proved,  that  the  dissentients  had  a  large  majority,  it 
is  incumbent  on  the  party  seeking  to  bind  them  by  the  vote  upon  the 
question,  to  show  that  it  was  put  by  the  proper  person,  at  a  proper 
time,  in  a  proper  form,  and  in  distinct,  plain,  undeceptive,  and  intelligi- 
ble shape. 

ISthly.  The  rules  of  order  prescribe  that  the  question  made  by  a  mem- 
ber be  repeated  by  the  moderator  before  it  is  put,  in  order  to  give  the 
members  an  opportunity  of  understanding  it.  In  this  case,  the  modera- 
tor did  not  repeat  the  question,  nor  was  there  any  thing  equivalent  to  it, 
as  the  motion  was  stated  but  once,  and  the  question  immediately  put  upon 
the  motion. 

The  organization  under  Drs.  Beman  and  Fisher,  was  subject  to  the 
same  infirmity,  as  that  from  which  they  dissented,  for  the  resolution 
readmitting  the  disowned  Synods,  was  not  passed  until  they  had  elected 
their  permanent  moderator  and  clerks. 


494  PRESBYTERIAN  CHURCH  CASE. 

If  the  refusal  of  Dr.  Elliott,  to  put  a  motion  or  an  appeal,  authorize  the 
member  aggrieved,  to  put  a  motion  to  the  house,  such  irregularity  must 
be  proportionate  to  the  exigency,  i.  e.  the  member  aggrieved,  could  him- 
self put  that  motion,  (and  no  other,)  to  the  house,  which  had  been  so 
refused. 

The  moderator  of  the  Assembly  of  1837,  was  constitutionally  the 
moderator  of  1838,  until  the  moderator  for  that  year  was  elected;  and 
was  incapable  of  being  removed,  until  the  moderator  of  the  year  1838 
was  elected. 

In  case  the  moderator  of  1837,  was  incapable  for  any  reason  of  presi- 
ding at  the  organization  of  1838,  then,  by  the  standing  rules  of  the 
Assembly,  the  last  preceding  moderator  present,  is  to  preside;  and  as  at 
the  time  l)r.  Beman  was  put  in  the  chair,  there  were  two  more  recent 
moderators  present,  they,  by  said  standing  rules,  were  entitled  to  the 
chair,  in  preference  to  Dr.  Beman. 

That  the  "  Plan  of  Union"  was  always  subject  to  be  revoked  at  the 
will  of  the  General  Assembly;  either  from  the  nature  and  character  of 
the  agreement,  or  from  the  fact,  that  there  was  no  reciprocity;  the  Gene- 
ral Association  of  Connecticut,  being  invested  with  no  power  to  legislate 
in  such  cases,  and  especially,  to  enact  laws  to  regulate  churches  not  within 
her  limits.     (Vide  Minutes  of  1837,  page  421.) 

That  said  "Plan  of  union,"  by  introducing  unordained  lay  delegates 
from  Congregational  churches,  into  the  Presbyteries,  which  are  the  con- 
stituent bodies,  violated  fundamental  provisions  of  the  constitution  of  the 
Presbyterian  Church  in  those  articles  of  the  constitution  which  provide, 
that  the  churches  shall  be  governed  by  ruling  elders,  and  shall  be  repre- 
sented in  the  Presbyteries  by  ruling  elders. 

That  this  alteration  of  fundamental  articles  of  the  constitution,  tran- 
scended the  powers  of  the  General  Assembly,  and  could  only  be  rendered 
valid,  if  at  all,  by  the  approval  of  a  majority  of  the  Presbyteries, 

That  as  no  direct  approval  of  this  measure,  viz:  "  Plan  of  Union,"  was 
ever  given  by  the  Presbyteries,  the  same  never  having  been  transmitted 
to  them  for  their  approbation,  in  order  to  supply  this  defect  by  long 
acquiescence,  it  must  be  proved  that  the  acquiescing  Presbyteries  had 
full  and  entire  knowledge  of  the  exercise  of  rights  under  this  "Plan  of 
Union." 

That,  if  the  jury  believe,  that  a  majority  of  the  Presbyteries,  were  in 
regions  of  country,  where  churches  were  not  formed  on  the  "  Plan  of 
Union,"  and  the  statistical  reports  from  the  Presbyteries  of  those  regions 
where  churches  were  formed  on  that  plan,  disguised  these  churches 
under  the  denomination  of  Presbyterian  churches;  then  their  continuance 
for  any  number  of  years,  is  no  proof  of  the  acquiescence  of  a  majority  of 
the  Presbyteries. 

In  the  inquiry  touching  the  constitutionality  of  these  acts  of  Assem- 
bly of  1837,  disowning  the  four  Synods,  it  is  to  be  taken  as  proved,  that 
the  churches  composing  those  Synods  were  Congregational;  the  defen- 
dants having  offered  to  prove  that  fact,  and  the  court  having  rejected  that 
testimony. 

(Signed) 

F.  W.  HUBBELL,  for  Defendants. 


MR.  HUBBELL'S  ARGUMENT.  495 

On  Friday,  March  29th,  on  motion  of  the  defendants'  counsel,  the 
court  granted  a  rule  to  show  cause  why  a  new  trial  should  not  be  allowed, 
and  the  above  reasons,  or  specification  of  points  on  which  the  defendants 
intended  to  rely,  weje  filed. 

On  Monday,  April  8th,  the  court  fixed  Wednesday,  April  17th,  for 
the  argument  on  the  motion  for  a  new  trial,  a  motion  having  previously 
been  made  by  the  defendants'  counsel,  that  a  day  might  be  named,  and 
the  court  having  taken  time  to  consider  the  subject. 

WEDNESDAY  MORNING,  April  17th.— 10  o'clock. 

Agreeably  to  the  appointment  of  the  court,  the  argument  on  the 
•motion  for  a  new  trial  was  commenced  by  Mr.  Hubbell,  on  the  part  of 
the  respondents.  On  the  bench  were  their  Honours  John  Bannister  Gib- 
son, Chief  Justice,  and  Molton  C.  Rogers,  Charles  Huston,  and  Thomas 
Kennedy,  Associate  Judges.  These  sat  during  the  whole  argument. 
Chief  Justice  Gibson  had  previously  announced  that  his  Honour  Thomas 
-  Sergeant,  the  other  Associate  Judge,  would  not  sit  in  the  case,  because  as 
one  of  the  trustees  of  the  First  Presbyterian  Church,  (Mr.  Barnes')  he  had 
participated  in  transactions  arising  out  of  the  controversy  between  the 
Old  and  New  School  parties,  and  because  his  feelings  were  otherwise 
interested  in  the  result  of  the  cause. 


MR.  HUBBELL'S  ARGUMENT. 

The  case  involves  directly  about  ^175,000,  and  interests  of  a  different 
kind  to  an  incalculable  amount.  This,  alone,  is  a  reason  why  the  oppor- 
tunity of  another  investigation  should  be  given. 

The  case  made  by  the  relators  falls  under  two  heads:  the  acts  of  the 
Assembly  of  1837;  and  the  organization  of  the  Assembly  of  1838.  The  first 
division  but  ancillary  to  the  other,  or  explanatory  of  it,  and  so  considered 
by  Judge  Rogers.  The  relators  contend  that  the  exclusion  of  certain 
commissioners  in  1838,  was  the  result  of  a  conspiracy  between  the  Mode- 
rator, clerks,  and  a  portion  of  the  Old-school,  to  carry  out  certain  acts  of 
1837,  which  were  illegal  and  void. 

They  admit  that  those  acts  did  not  destroy  the  Assembly  in  1837, 
and  that  an  Assembly,  with  full  capacity  to  act,  might  have  been  organized 
in  accordance  therewith  in  1838;  but  contend  that  the  exclusion  in  1838, 
consequent  upon  the  acts  of  1837,  justified  their  measures,  which  they 
now  say  were  merely  the  removal  of  the  Moderator  and  clerks  for  their 
misconduct. 

They  allege  that  the  Assembly  had  a  right  to  remove,  and  did  remove 
those  officers;  that,  though  in  fact  a  majority  of  the  Assembly  took 
no  part  in  the  proceeding,  considering  and  treating  it  as  a  disorder,  their 
silence,  when  the  vote  was  put,  must  be  construed  into  acquiescence. 
Their  whole  cause  depends  on  the  proposition,  that  the  majority,  by 
intendment  of  law  said, '  Yes,'  when  they  did  not  say  any  thing,  because 


496  PRESBYTERIAN  CHURCH  CASE. 

they  did  not  consider  the  question  put  to  them,  and  when  it  is  clearly  in 
proof  that  if  they  had  said  anything,  they  would  have  said, '  No.' 

If  the  Assembly  had  a  right'to  remove  their  officers,  and  did  remove 
them,  the  majority  acquiescing  in  the  act,  why  give  any  reason  for  the 
removal?  Why  bring  forward  the  acts  of  1837? — unless  to  prejudice  the 
mind.  If  it  was  proper  to  bring  in  those  acts  at  all,  they  could  justly 
come  in  only  as  offered  in  justification  of  our  conduct. 

No  doubt  the  Old-school  had  a  majority  in  the  Assembly  of  1838,  even 
taking  into  account  the  rejected  commissioners.  Mr.  Krebs^  test,  ante, 
164.  Dr.  McDowell— 210.  Dr.  Patton—55.^  Dr.  Mason— dS.  They 
also  had  a  majority  in  1837.  These  Assemblies  were  a  fair  index  of  the 
comparative  numerical  strength  of  the  two  parties.  In  1837,  a  great 
struggle,  between  the  two  systems  of  theology  known  to  exist  in  the- 
Church,  was  anticipated.  No  doubt  the  system  of  the  Old-school,  who 
adhere  strictly  to  the  standards,  is  orthodox,  and  that  of  the  New-school, 
if  that  party,  the  individuals  of  which  depart  in  very  different  degrees 
from  the  standards,  can  be  said  to  have  a  system,  is  heretical.  Testimony 
in  regard  to  this  difference  of  creed  overruled  by  Judge  Rogers,  ^nte, 
193.  To  the  General  Assembly  it  belongs  to  decide  in  all  controversies 
about  doctrine.     Jinte,  31.     From  it  there  can  be  no  appeal.     Ante,  188. 

All  milder  measures  were  tried  by  the  Old-school  in  1837,  before 
resorting  to  those  complained  of.  Ante,  37-45.  But  the  terms  propos- 
ed by  the  other  side  were  inadmissible.  I  now  come  to  the  considera- 
tion of  the  acts  of  1837,  improperly  called  "acts  of  excision,"  viz.  the 
declaration  that  the  four  Synods  of  Utica,  Geneva,  Genesee,  and  the 
Western  Reserve,  were  no  part  of  the  Presbyterian  Church. 

The  chief  source  of  difficulty  in  that  Church  had,  before  1837,  been 
discovered  to  be  the  "Plan  of  Union"  of  1801,  by  which  Congregation- 
alists  were  admitted  to  partake  of  the  benefits  of  Presbyterianism,  with- 
out joining  our  Church,  and  to  exert  an  influence  in  our  judicatories, 
though  not  submitting  to  their  authority.  Their  admission  was  a  viola- 
tion of  the  principles  of  Presbyterianism,  and  had  greatly  disturbed  the 
order  and  affected  the  purity  of  the  Church. 

The  essence  of  Presbyterianism  is  Calvinistic  doctrine,  and  govern- 
ment by  ruling  elders.  A  church  deficient  in  either  is  not  a  Presby- 
terian church.  A  Congregational  church  has  no  ruling  elders,  but  is 
governed  by  the  body  of  its  male  members.  There  are  other  important 
differences  between  the  two  Churches. 

The  "Plan  of  Union"  (ante  49)  marred  the  Presbyterian  structure, 
introducing  disorders  widely  into  its  system.  It  was  unconstitutional; 
for  it  introduced  into  the  Church  congregations  without  ruling  elders;  it 
permitted  unordained  lay  delegates  to  sit  in  the  Presbytery;  and  was  in 
other  points  opposed  to  Presbyterian  principles.  Form  of  Gov.  Chaps. 
VIII.  IX.  X.  &c.     ^n/e23,  4,  155. 

It  cannot  be  regarded  as  an  alteration  of  the  Constitution,  for  it  was 
never  submitted  to  the  Presbyteries.  Form  of  Gov.  Chap.  XII.  Sect.  6. 
Ante,  136.  And  no  such  change  could  have  been  made,  even  with  the 
concurrence  of  the  Presbyteries,  because  a  violation  of  the  charter  granted 
in  1799.  Ante  21.  Of  course  then  the  Presbyteries  could  not  by  acqui- 
escence make  it  good;  though  length  of  time  is  no  proof  of  their  acquies- 
cence, unless  knowledge  and  opportunity  sufficient  to  have  abrogated  it 


MR.  HUBBELL'S  ARGUMENT.  aqj 

be  shown  to  have  existed.  There  is  clear  proof  that  the  facts  of  the  case 
were  disguised  and  misrepresented  by  the  Presbyteries  within  the  four 
Synods,  in  their  reports.  At  any  rate  the  question  of  acquiescence  was  a 
question  of  fact,  yet  Judge  Rogers  took  it  from  the  jury.     ^)ite,  465. 

The  "Plan  of  Union"  was  grossly  abused;  but  the  whole  of  the  mis- 
chiefs growing  out  of  it  were  not  disclosed  until  from  1S35  to  1837, 
chiefly  because  of  the  misrepresentations  of  the  Presbyteries  formed 
under  it  themselves.  In  1837,  of  the  one  hundred  and  thirty-nine 
churches  in  the  Synod  of  the  Western  Reserve,  one  hundred  and  nine 
were  either  Congregational  or  mixed;  and  two-fifths  of  those  in  the  other 
three  disowned  Synods  were  of  the  same  character.  Yet  these  all,  under 
the  guise  of  Presbyterian  churches,  were  represented  in  Presbytery  and 
.in  the  Assembly.  This  we  offered  to  prove  at  the  trial,  and  are  therefore 
entitled  to  take  it  for  granted,  ^nfe,  182,  3.  The  general  operation  of 
the  system,  and  some  of  its  abuses  are  in  evidence.  Mr.  Squier — antCy 
11,2.     ^7ite,21,8.     3Iin.  1837,  521,  3. 

The  "  Plan  of  Union"  was  plainly  not  a  contract:  it  wanted  both 
competent  parties  and  consideration;  and  it  was  clearly  a  mere  temporary 
arrangement.  Judge  Rogers  decided  that  either  party  had  a  right  to 
abrogate  it.     t/3}2te,  465. 

The  impugned  acts  of  1837  were  the  abrogation  of  the  "  Plan  of 
Union,"  and  the  declaration,  that,  in  consequence  thereof,  four  Synods 
were  not  a  part  of  the  Presbyterian  Church,     ^nie,  37,  44,  46. 

A  majority  of  the  Assembly  of  1837,  and  a  still  greater  majority  of 
the  Assembly  of  1838,  were  Old-school.  This  shows  the  sense  of  the 
Church  in  regard  to  the  measures  of  1837. 

A  great  deal  has  been  said  about  the  funds  contributed  by  the  Presby- 
teries belonging  to  the  four  Synods.  See  the  propositions  of  the  New- 
school  in  regard  to  funds,  ^nte,  42. '  We  offered  to  prove  that  those 
Presbyteries  had  received  far  more  than  they  had  ever  contributed. 
,dnte,  185. 

It  is  said  we  ought  to  have  proceeded  judicially  against  the  Synods; 
and  Judge  Rogers,  by  mistake,  says  that  this  was  attempted  and  aban- 
doned. Ante,  38,  468.  For  what  could  they  have  been  tried?  For 
being  Congregational  ?  That  was  no  crime.  It  was  impossible  to  proceed 
criminally  against  such  bodies.  How  could  the  process  prescribed  in  the 
Constitution  be  applied  to  them?  Jlnte  28,  et  seq.  There  is  no  provi- 
sion for  the  case  of  a  judicatory,  excepting  a  process  in  the  nature  of  a 
mandamus.    B.  of  Discipl.  Chap.  VII.  Sec.  1.  Nos.  5,  6. 

The  <'acts  of  excision,"  as  they  are  called,  were  nothing  more  than  a 
dissolution  of  the  four  Synods  and  some  of  their  Presbyteries.  The  only 
persons  excluded  are  Congregationalists.  The  Assembly  has  the  power 
to  erect  Synods  and  Presbyteries.  Form  of  Gov.  Chap.  XII  Sect.  5. 
Ante,  347.  The  power  to  dissolve  them  is  consequent  upon  this,  and  has 
been  frequently  exercised.  Ante,  47,  347,  405-6.  See  opinion  of  Mr. 
Squier — Ar\te,  159.  See  Assem.  Dig.  55,  et  seq.  This  is  a  legislative 
and  not  a  judicial  power.  The  acts  of  1837  may  be  justified,  as  an  exer- 
cise of  the  power  of  the  Assembly  to  judge  of  the  qualifications  of  its 
own  members,  and  of  their  electors. 

Court  adjourned. 

63 


498  PRESBYTERIAN  CllUKCU  CASE. 


THURSDAY  MORNING,  April  18th— 10  o'clock. 

The  so-called  excision  was  but  a  dissolution.  The  rights  of  all  Pres- 
byterians were  saved  by  the  fourth  resolution.  Ante,  46.  We  could  not 
get  this  properly  before  the  jury.  Judge  Rogers  gave  them  only  a  part 
of  it — that  relating  to  the  restoration  of  Presbyteries.  Ante,  467.  That 
the  Assembly  has  legislative  power,  is  proved  by  its  whole  history. 

By  the  operation  of  the  "Plan  of  Union,"  Congregationalism  had 
become  so  intimately  blended  with  Presbyterianism,  in  the  four  Synods, 
that  their  dissolution  was  the  only  effectual  mode  of  purging  them. 

We  have  been  compelled  to  go  into  the  consideration  of  the  acts  of 
1837,  though  we  do  not  consider  them  material  to  the  issue.  We  next 
take  up  the  second  part  of  the  case — the  organization  of  the  Assembly 
of  1838. 

Even  supposing  the  acts  of  1837  void,  they  did  not  destroy  the  Assem- 
bly of  that  year,  as  was  acknowledged  by  the  opposite  party,  by  their 
organizing  themselves  in  1838,  at  the  time  and  place  fixed  by  that  body 
on  the  last  day  of  its  session;  and  by  their  recognising  the  validity  of  an 
election  of  trustees  made  after  the  Synod  of  the  Western  Reserve  had 
been  exscinded.    Ante,  45. 

Each  Assembly  is  dissolved  at  the  end  of  its  session,  and  a  new  one 
summoned.  Ante,  141,  155.  So  the  Assembly  of  1837  was  dissolved. 
Ante,  141.  Each  Assembly  is  independent  of  every  other,  except  that 
the  Moderator  and  clerks  of  each  are  continued  in  office  to  organize  the 
succeeding  body.    Ante,  156,  7. 

No  member  of  the  Assembly  can  vote  until  his  name  has  been  enrolled. 
Ante,  155. 

In  1826,  certain  rules  for  the  organization  of  the  Assembly  were  adopt- 
ed, to  go  into  effect,  if  a  proposed  change  in  the  Constitution  should  be 
approved  by  the  Presbyteries,  and  were  sent  down  to  the  latter  with  the 
recommendation  of  the  constitutional  amendment.  The  Presbyteries  re- 
turned the  whole  with  their  approval.  These  rules,  then,  though  not  a  part 
of  the  Constitution,  were  concurred  in  b)'  the  Presbyteries.  According 
to  them,  as  subsequently  amended,  the  process  of  organization  involves, 

1st.  The  duty  of  the  Moderator:  To  constitute  the  Assembly  by 
prayer.  By  a  rule  above  referred  to,  he  is  to  preside  and  keep  order 
until  a  new  Moderator  be  chosen. 

2d.  The  duty  of  the  Committee  of  Commissions,  or  clerks :  To  receive 
the  commissions,  enroll  the  names  from  those  which  are  constitutional  and 
regular,  and  report  the  roll  to  the  Assembly.  It  has  been  the  practice 
also  to  report  on  a  separate  list,  the  names  of  those  Vv'hose  commissions 
were  otherwise. 

3d.  The  duty  of  the  house :  To  appoint,  as  its  first  act,  a  Committee 
of  Elections,  whose  duty  it  is  to  report  on  all  informal  and  unconstitu- 
tional commissions,  as  soon  as  practicable.    Ante,  155,  6. 

The  clerks  being  a  standing  Committee  of  Commissions,  they  receive 
the  commissions  before  the  meeting  of  the  body.  In  1838,  the  commis- 
sioners presented  their  commissions;  and,  in  accordance  with  the  acts  of 
1837,  the  clerks  rejected  those  from  the  exscinded  Synods.  Ante,  158, 
el  seq.     Their  doing  so  was  not  the  result  of  any  pledge,  {Ante,  65,  et 


i\IR.  HUBBELL'S  ARG'UMEiNT.  499 

seg.)  though,  if  the  contrary  could  be  shown,  it  would  make  no  differ- 
ence. As  mere  ministerial  officers,  they  were  bound  to  regard  the  acts 
of  the  Assembly  as  valid.      They  therefore  did  not  violate  their  duty. 

Did  the  Moderator  violate  his?  The  first  application  on  the  part  of 
the  rejected  commissioners  was  made  through  Dr.  Patton.  This  was 
before  the  report  of  the  roll — before  there  was  any  house.  Judge  Rogers 
decided  that  the  Moderator  was  right  in  his  decision  respecting  Dr.  Pat- 
ton.     Jlnte,  473. 

Dr.  Mason's  motion  was  out  of  order.  1st.  Because  it  interfered  with 
a  compliance  with  the  Moderator's  call  for  commissions  not  yet  presented, 
and  was  not  itself  responsive  to  that  call.  D)\  Mason,  88;  also  ante, 
111,101,  176,178,  179,  Dr.  Elliott,  197.  Compare  Minutes  {^Old- 
school)  1838 — Ante,  220,  with  Dr.  Elliott's  explanation — Ante,  200,  1. 
Mr.  Joshua  Moore  was  actually  coming  forward  at  the  time  in  obe- 
dience to  the  call,  2d.  Because  the  report  on  the  roll  was  not  complete, 
until  those  10  whom  the  Moderator's  call  was  made,  had  the  opportunity 
of  being  enrolled.  3d.  Because  the  first  act  of  the  house  must  be  the 
appointment  of  a  Committee  of  Elections. 

The  Moderator  of  course  had  a  right  to  decide  the  question  of  order. 
The  present  constitution  gives  no  right  of  appeal  from  his  decision,  though 
the  former  constitution  did.  Ed.  1806  p.  426.  There  is  no  right  of 
appeal  where  none  is  given.  Jeff.  Man.  {Sutherland's)  116.  An  appeal 
is  given  by  the  constitution  when  the  house  is  acting  in  a  judicial  capa- 
city.    Book  of  Discip.  Chap.  IV.  Sec.  22, 

There  was  as  yet  no  house  completely  organized,  to  which  any  ques- 
tion, on  either  a  motion  or  appeal,  could  be  put.  If  one  had  been  put, 
Mr.  Moore's  privilege,  and  the  privilege  of  all  similarly  situated,  would 
have  been  violated.  Dr.  Mason  acquiesced  in  the  decision.  He  sat 
down  without  complaint. 

Mr.  Squier's  application  intervened  between  Dr.  Mason's  motion  and 
Mr.  Cleaveland's.  He  was  clearly  out  of  order:  so  Judge  Rogers  decided. 
No  person  not  enrolled  is  a  member,  and  none  but  members  can  speak. 
Ante,  155,474. 

Suppose  the  Moderator  wrong  in  his  decision  as  to  Dr.  Mason — sup- 
pose it  was  a  breach  of  privilege — that  does  not  make  Mr.  Cleaveland 
right.  The  opposite  party  now  say,  that  Mr.  Cleaveland's  motion  con- 
templated only  the  deposition  of  one  Moderator  and  the  appointment  of 
another,  by  the  vote  of  the  whole  house;  and  that  this  change  was  so 
effected.  We  contend  that  it  contemplated  a  new  and  separate  organiza- 
tion, to  be  afterwards  set  up  as  the  true  General  Assembly,  but  which 
should  be  effected  without  our  concurrence,  or  any  regard  to  our  votes. 
That  Mr.  Cleaveland's  purpose  supposed  the  rejection  of  the  exscinded 
commissioners  by  the  house,  itself. 

If  we  can  establish  this  position  it  puts  an  end  to  their  case;  for  then  it 
appears  that  our  opponents  did  not  mean  to  do,  what  they  say  they  did; 
that  they  did  not  put  to  us  the  question  on  which  they  say  we  voted  aye, 
by  our  silence;  while  they  had  no  reason  for  doing  what  they  really  did, 
as  the  house,  even  on  their  own  showing,  h.ad  done  nothing  wrong: 
indeed  Mr.  Phelps  says  the  house  would  have  admitted  the  rejected  com- 
missioners.    Ante,  119. 

Court  adjourned. 


500  PRESBYTERIAN  CHURCH  CASE. 


FRIDAY  MORNING,  April  19th— 10  o'clock. 

The  Old-school  had  a  large  majority  in  the  body.  At  the  time  of  Mr. 
Cleaveland's  motion,  we  had  145,  and  the  opposite  party  about  119, 
counting  the  50  commissioners  from  the  exscinded  bodies,  and  4  from 
the  dissolved  Third  Presbytery  of  Philadelphia.  Our  number  afterwards 
increased  to  159,  and  theirs  to  between  120  and  130.  ^nte,  54,  84,  93, 
164,210. 

The  proof  that  the  New-school  intended  a  new  and  separate  organiza- 
tion is  as  follows: 

Their  plan  was  preconcerted:  it  was  formed  before  the  misconduct  of 
the  Moderator  was  known.  Ante,  55,  190,  191.  Mr.  Cleaveland's 
paper  was  prepared  before-hand.  All  the  New-school  members  seem  to 
have  considered  every  one  present  who  had  a  commission  entitled  to 
vote,  and  accordingly,  it  appears  that  the  rejected  commissioners  did  vote; 
which  was  an  evident  disregard  of  the  partial  organization  already 
effected.  Ante,  92,  215.  Mr.  Cleaveland's  use  of  the  word  we,  proves 
that  he  addressed  his  motion  to  the  New-school  only.  Ante,  223.  See 
also  the  same  manner  of  expression  in  the  Pastoral  Letter  of  the  New- 
school.  Ante,  190,  1.  All  Mr.  Cleaveland's  introductory  remarks  prove 
the  same  thing.  He  did  not  say  a  word  about  the  misconduct  of  the 
officers;  nor  a  word  about  displacing  Dr.  Elliott;  nor  a  word  about  the 
breach  of  Dr.  Mason's  privilege.  The  New-school  minute  contains  only 
a  part  of  his  remarks:  other  parts  given  by  different  witnesses,  are  still 
more  conclusive  as  to  this  point,  ^^n/e,  101,  173,  174.  If  the  Old-school 
had  voted  against  the  motion,  their  votes  would  have  been  disregarded. 
To  show  this  we  asked  Mr.  Gilbert  a  question;  but  it  was  overruled  by 
the  court.     Ante,  87. 

But  suppose  the  object  of  Mr.  Cleaveland's  motion  to  have  been  what 
is  now  contended,  still  the  whole  proceeding  was  disorderly,  and  no  valid 
result  was  attained.     This  for  the  following  among  many  reasons. 

1st.  According  to  a  standing  rule  or  order  of  the  house,  the  first 
business  was  the  appointment  of  a  Committee  of  Elections.  As  to  the 
force  of  standing  orders,  see  2  Hatsell,  113. 

2d.  The  question  was  not  put  as  a  question  of  breach  of  privilege,  nor 
so  understood;  nor  was  any  mention  made  of  the  misconduct  of  Dr. 
Elliott,  nor  was  his  deposition  proposed.  The  Old-school  thought  they 
had  nothing  to  do  with  the  proceedings.  If  the  object  of  the  motion 
was  what  it  is  said  to  have  been,  that  object  was  not  clearly  made  known 
to  us:  the  motion  was  deceptive  and  fraudulent. 

3d.  Mr.  Cleaveland  did  not  address  the  Moderator,  nor  was  the  ques- 
tion put  by  the  Moderator.  Form  of  Gov.  Chap.  XIX.  Sect.  2. 
Ante.  150. 

4th.  If  it  was  improper  that  the  Moderator  should  put  it,  it  ought  to 
have  been  put  by  the  clerks.  Ante,  78.  2  Hatsell,  211,  212,  with 
note.  6  Grey,'  AOQ,  448.  Jeff.  Man.  {Sutherl.)  104.  Sutherl. 
Man.  71,2. 

5th.  Instead  of  choosing  Dr.  Beman  to  preside,  they  should  have 
chosen  the  person  who  had  been  Moderator  last  before  Dr.  Elliott,  and 


MR.  HUBBELL'S  ARGUxMENT. 


501 


who  was  present.  This  rule  was  adhered  to  in  1835.  Ante,  105,  151. 
Though  Dr,  Elliott  was  not  absent,  yet  the  chair  was  treated  as  vacant. 

6th.  No  opportunity  was  given  for  debate.  We  were  taken  by  sur- 
prise, and  every  thing  hurried  through  with  unprecedented  despatch. 

7th.  Mr.  Cleaveland  was  repeatedly  called  to  order,  not  only  by  the 
Moderator,  but  also  by  the  members. 

8th.  All  the  witnesses  have  agreed  that  there  was  great  noise  and  dis- 
order; and  nearly  all  the  Old-school  witnesses,  that  they  were  not  able  to 
hear,  and  did  not  know  what  was  going  on.  In  order  to  take  advantage 
of  the  principle  that  silence  is  acquiescence,  since  the  question  was  put 
at  an  unusual  time  and  by  an  unusual  person,  it  is  necessary  to  prove  that 
we  could  hear,  and  had  full  opportunity  to  act. 

Mr.  Hubbell  then  proceeded  to  read  the  specification  of  points  which 
had  been  filed.  Ante,  483.  The  consideration  of  most  of  these  had  been 
involved  in  the  previous  argument:  a  synopsis  of  his  remarks  on  the 
more  important  of  the  others  we  here  give. 

1,  2.  Jlnte,  86,  87.  We  did  not  contend  that  the  New-school  meant 
"  to  effect  an  ex-parte  organization,  with  a  view  to  a  peaceable  separation 
of  the  Church,"  (Ante,  480)  but  that  they  intended,  by  their  own  votes, 
to  organize  an  Assembly,  to  be  afterwards  set  up  as  the  true  General 
Assembly. 

6.  Ante,  201,  2. 

7.  Here  Judge  Rogers  said,  that  his  recollection  was,  that  the  whole  of 
the  Minutes  (0.  S.)  of  1838,  had  been  given  in  evidence;  and  this  state- 
ment corroborated  by  that  of  the  counsel  for  the  relators,  was  taken  by 
the  court.    Ante,  221,  430. 

8.  That  part  of  Dr.  Nott's  deposition  which  was  excluded,  related  to 
certain  communications  with  the  New-school  commissioners,  assembled 
in  their  caucus,  or  meeting  for  consultation,  and  would  have  shown  con- 
clusively that  they  intended  an  ex-parte  organization. 

25.  Something  farther  was  done,  for  the  committee  appointed  reported, 
that  in  their  judgment,  the  subsequent  action  of  the  Assembly  had  made 
it  inexpedient  for  them  to  cite  any  inferior  judicatories,  and  this  report 
was  accepted.     Min.  1837,  496. 

36.  A  pure  question  of  law  referred  to  the  jury. 

38.  Mr.  Randall  showed  that  this  was  a  mistake;  that  the  numbers 
cut  off  had  been  given  in  evidence.     Ante.  36. 

45.  A  question  of  fact  taken  from  the  jury.     Ante,  All. 

53,  54.  Chief  Justice  Gibson  said  in  regard  to  these  two  points,  that 
he  was  surprised  to  find  them  urged;  that  he  had  supposed  the  object  of 
asking  a  new  trial,  was,  that  the  great  principles  involved  in  the  case 
might  be  settled;  that  it  was  under  his  direction  the  verdict  had  been  so 
entered,  and,  if  necessary,  he  would  order  its  form  to  be  amended,  Mr. 
Hubbell  replied,  that  as  counsel  for  the  respondents  he  had  not  felt  at 
liberty  to  overlook  the  objection. 

Court  adjourned. 


502  PRESBYTERIAN  CHURCH  CASE. 


MR.  MEREDITH'S  ARGUMENT. 

MONDAY  MORNING,  April  22d— 10  o'clock. 

It  has  been  said,  that  the  amount  of  property  in  dispute  is  upwards  of 
one  hundred  and  seventy  thousand  dollars;  but  this,  it  will  be  remem- 
bered, is  not  to  be  taken  away  from  any  individual:  no  one  will  suffer  in 
pocket,  be  your  judgment  what  it  may.  From  all  control  over  this  large 
amount  of  property,  we  have  been  excluded. 

The  final  decision  of  the  case,  however,  will,  in  its  effects,  go  much 
farther  than  we  might  be  led  to  suppose,  by  this  estimation  of  the  amount 
directly  in  question.  It  may  affect  rights  of  property  in  every  individual 
church  throughout  the  land:  for  in  each  church,  the  issue  here  presented, 
must  in  some  way  be  tried  and  decided. 

This  is  a  motion  for  a  new  trial:  the  questions  which  it  involves,  must 
be  determined  by  a  reference  to  the  law  of  corporations.  In  the  whole 
course  of  the  argument  on  the  other  side,  not  one  single  case  or  authority 
has  been  quoted,  which  gives  any  precedent  for  the  most  extraordinary 
conduct  of  the  opposite  party,  in  cutting  off  a  large  portion  of  their 
brethren. 

The  great  question  on  which  the  decision  of  this  case  must  depend,  is. 
Was  Dr.  Beman  duly  and  lawfully  elected  Moderator  of  the  General 
Assembly  of  1838.^  The  solution  of  that  question  will  solve  the  whole 
difficulty. 

We  allege, 

1st.  That  at  the  commencement  of  the  sessions  of  the  General  Assem- 
bly of  1837,  there  were  twenty-eight  Presbyteries  within  the  bounds  of 
the  four  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Reserve, 
known  as  the  exscinded  Synods;  which  Presbyteries  were  regularly  con- 
stituted, and  were  in  full  connexion  with  the  General  Assembly;  their 
commissioners  being  received,  and  they  themselves  recognised  in  a  variety 
of  ways.  They  were  not  constituted  under  the  operation  of  any  plan  of 
union  whatever,  but  were  regularly  created  or  admitted,  in  the  ordinary 
manner,  as  all  other  Presbyteries  are  created  or  admitted,  according  to 
the  constitution  and  laws  of  the  Presbyterian  Church. 

2d.  That  the  Assembly  of  1S37  attempted  to  disfranchise  all  these  Pres- 
byteries by  certain  acts,  called  the  exscinding  acts,  which  were  unconsti- 
tutional and  void. 

3d.  That  the  clerks  of  the  Assembly  of  1837,  who  were  continued  in 
office  to  assist  in  the  organization  of  the  Assembly  of  1838,  violated  their 
duty,  in  attempting  to  carry  into  effect  these  unconstitutional  and  void 
acts  of  1837. 

4th.  That  the  Moderator  of  1837,  continued  in  office  for  the  same  pur- 
pose, united  with  the  clerks  in  this  illegal  attempt,  and  thus  violated  his 
duty. 

5th.  That  the  Moderator  was  thereupon  regularly  removed  from  office, 
by  a  vote  of  the  body,  lavvfull}^  taken. 

In  1799,  when  the  charter  was  granted,  the  Assembly  was  composed 
in  part  of  members  of  Congregational  Associations,  who  both  sat  and 
voted.      The  plans  of  union  by  which  this  was  allowed,  were  certainly 


MR.  MEREDITH'S  ARGUMENT.  503 

more  objectionable,  according  to  the  doctrines  of  the  other  side,  than  the 
plan  of  1801.  This  last  is  to  be  regarded  only  as  a  relaxation  of  disci- 
pline; and  the  judicatories  of  the  Church  are  at  liberty  to  allow  of  such 
relaxations.  Form-  of  Gov.  Chap.  X.  Sect.  S—Noies.  An  to  the  autho- 
rity of  these  notes,  see  Assejn.  Dig.  126. 

1st.  These  Presbyteries  were  constituted  in  the  regular  and  ordinary 
manner:  some  of  them  by  the  General  Assembly,  and  others  by  different 
Synods.  Assemb.  Dig.  57,  8.  There  is  no  evidence  that  one  of  them 
came  in  under  any  plan  of  union.  Fourteen  of  them  were  parties  to  the 
new  Constitution  formed  in  1S21:  their  rights,  therefore,  were  similar  to 
those  of  the  thirteen  old  states. 

2d.  In  1837,  the  Assembly  attempted  to  disfranchise  these  Presby- 
teries by  certain  resolutions,  which  were  null  and  void.  The  resolutions 
profess  to  exclude  them  entirely  from  the  Church.  After  being  excluded, 
they  were  indeed  told  that  in  a  certain  way,  and  on  certain  conditions, 
they  might  be  restored,  but  even  this  provision  was  deceptive. 

They  were  excluded  without  trial,  though  the  reason  of  their  exclusion 
was  their  being  charged  with  an  offence,  for  which  they  were  not  liable 
to  punishment,  until  regularly  tried  and  convicted.  This  is  the  principle 
of  all  law.  If  they  were  put  out  without  reason,  the  act  was  void;  if  for 
sufficient  cause,  that  cause  must  have  been  some  offence  against  the  Church. 
Indeed,  they  were  distinctly  charged  with  gross  irregularities.  The  want 
of  ruling  elders  was  certainly  an  ecclesiastical  offence.  It  is  said  that  it 
is  no  offence  to  be  a  Congregationalist;  but  it  is  an  offence:  as  regards  the 
Presbyterian  Church,  it  is  heresy.  The  Form  of  Government  provides 
for  the  trial  of  offences,  and  secures  the  right  of  trial  to  the  meanest  indi- 
vidual: if  it  did  not,  the  common  law  requires  a  trial  in  every  such  case. 
Jlssemb.  Dig.  324,  5. 

We  deny  the  right  of  the  General  Assembly  to  dissolve  a  Presbytery. 
The  constitution,  even  if  it  gives  power  to  erect,  gives  no  power  to  des- 
troy them. 

The  Assembly  did  take  measures  to  cite  these  Presbyteries  before  them. 
They  had  rights  in  the  nature  of  a  franchise,  and  could  not  be  excluded 
or  disfranchised  without  citation.  Bugg's  case,  11  Coke's  Rep.  99. 
Commonwealth,  v.  St.  Patrick  Soc.  2  Binney's  Rep.  448.  Common- 
wealth V.  Guard,  of  Poor,  6  Serg.  Sr  Rawle's  Rep.  496.  Symmes  v. 
Regem,  Cowper's  Rep.  489,  507. 

The  exclusion  was  founded  on  a  false  pretence;  and  even  if  the  reason 
given  had  been  the  true  one,  it  would  not  have  been  sufficient.  The 
Presbyteries  did  not,  and  could  not,  come  in  under  the  act  of  1801.  That 
authorized  standing-committee  men  to  sit  in  Presbytery  only  in  a  certain 
specified  case — that  of  an  appeal. 

The  commissioners  from  the  exscinded  Presbyteries  could  not  be 
restored  by  mandamus.  A  mandamus  could  not  be  directed  to  the 
Assembly. 

3d.  The  clerks  of  the  Assembly  of  1837  violated  their  duty  in  attempt- 
ing to  carry  out  the  void  acts  of  that  body.  It  was  their  duty  according 
to  the  rules  of  the  Assembly,  {Jlnte,  156)  to  put  the  names  of  all 
whose  commissions  were  regular  on  the  roll;  and  according  to  uniform 
practice,  they  were  bound  to  report  all  whose  commissions  were  irregu- 
lar on  a  separate  list.     On  one  of  these  lists  every  commission  presented 


504  PRESBYTERIAN  CHURCH  CASE. 

should  have  been  reported.  It  was  the  duty  of  the  clerks  to  put  the 
names  of  the  exscinded  commissioners  at  least  upon  the  roll  of  irregular 
commissions. 

4th.  The  Moderator  also  violated  his  duty.  He  united  with  the  clerks 
in  an  attempt  to  carry  into  effect  the  unconstitutional  resolutions  of  1837. 
His  very  text  {Ante,  222)  showed  his  intention.  He  was  guilty  of  mis- 
conduct, 1st,  in  not  admitting  the  rejected  commissioners  to  their  seats; 
2d,  in  refusing  to  put  the  question  on  either  Dr.  Mason's  motion  or 
appeal. 

Dr.  Mason's  offer  was  in  response  to  his  call,  which  was  for  commis- 
sions not  yet  enrolled.  That  this  was  the  meaning  of  the  call  is  testified 
by  the  Old-school  Minutes,  (Atite,  220)  by  Dr.  Elliott  himself,  {Ante, 
197)  and  by  Dr.  Plumer,  (Ante,  195.) 

The  rule  for  the  appointment  of  a  Committee  of  Elections  is  not  such 
a  standing  order  as  may  be  enforced  by  any  member's  merely  rising  and 
calling  for  its  enforcement.  It  could  be  not  enforced  without  a  motion; 
and  a  motion  made  might  be  negatived.  A  question  of  breach  of  privilege 
has  precedence  of  all  others.  2  Hatsell,  1 1 3,  4.  4  CohbeWs  Pari.  Hist. 
460,  591.  In  Parliament  when  a  member  appears  to  take  the  oaths,  all 
business  whatever  is  suspended  until  he  is  sworn.  2  Hatsell,  85.  The 
right  of  a  member  to  sit  is  always  a  question  of  privilege;  and  Dr.  Mason's 
was  therefore  such  a  question. 

Dr.  Mason  had  undoubtedly  a  right  of  appeal.  It  has  been  said  that 
he  had  not.  Under  the  old  constitution  it  was  expressly  given.  See 
the  Digest,  24,  where  by  a  rule  of  the  Assembly  an  appeal  is  allowed. 
The  practice  of  the  Assembly  is  conclusive  on  this  point.  Min.  1837, 
441— .^^2/e,  45. 

Court  adjourned. 


TUESDAY  MORNING,  April  23d— 10  o'clock. 

A  motion  made  to  admit  members  to  their  seats  must  be  received  even 
while  another  question  is  pending:  a  question  of  privilege  is  entitled  to 
precedence  at  all  times;  it  is  preferred  even  to  a  call  for  the  orders  of  the 
day,  which  may  be  made  while  a  question  is  pending.  2  Hatsell,  108, 
113,  4,  200. 

5th.  The  Moderator  was  lawfully  removed  by  a  regular  vote  of  the 
body.  Mr.  Cleaveland's  motion  was  heard.  For  this  I  refer  to  the  tes- 
timony of  the  witnesses  on  the  other  side.  Dr.  Phillips — Jinte,\Ql; 
Dr.  Harris,  170;  Dr.  Miller,  173;  Mr.  Brown,  175;  Mr.  fV/iite, 
176;  Dr.  Elliott,  199.  There  can  be  no  doubt  whether  the  Moderator 
could  be  removed:  he  is  the  mere  servant  of  tbe  house,  not  its  master. 

The  house  was  not  taken  by  surprise:  it  sanctioned  the  censure  cast 
upon  Dr.  Elliott,  the  clerks,  and  the  small  clique  of  the  Old-school  party 
by  which  they  were  supported. 

The  motion  was  lawfully  made,  put,  and  carried.  The  Moderator 
had  already  refused  to  do  his  duty;  had  refused  to  put  a  motion  designed 
to  effect  the  same  object.  Besides  the  motion  proposed  his  own  deposi- 
tion. The  clerk  cannot  put  a  question  unless  by  order  of  the  house. 
2  Hatsell,  201,  237,  207,  227.     4  Cobbett,  589,  1002.     In  1S35,  {»/2nte, 


MR.  MEREDITH'S  ARGUMENT. 


505 


78.)  Dr.  Ely  put  the  question,  not  as  Stated  Clerk,  but  as  a  member  of 
the  Assembly, 

The  question  was  lawfully  carried.  Those  who  were  silent  acquiesced. 
Only  those  who  actually  voted  can  be  counted;  and  of  those  who  voted 
in  1838,  no  doubt  there  were  a  majority  for  Dr.  Beman.  Oldknow  v. 
Wainivright,  2  Burrowes'  Hep.  1017,  1020.  Claridge  v.  Evelyn, 
5  Barn,  and  Jidolph,  Rep.  86.  Rex  v.  Monday,  Cowper's  Rep.  530. 
Rex.  V.  Parry,  14  Bast's  Rep.  559,  in  notes  561.  Rex.  v.  Hawkins, 
10  Bast,  214. 

The  following  authorities  also  cited:  2  Cobbett,  487,  488,  504,  552, 
585,  694.      4    Cobbett,  898,  925,  929,  1092. 

It  is  to  be  hoped  that  your  decision  will,  by  confirming  the  verdict  of 
the  jury,  produce  the  happy  effect  of  restoring  peace  and  unity  to  this 
divided  Church.  I  would  beg  leave  to  recommend  to  the  notice  of  the 
reverend  gentleman  who  is  to  preach  at  the  opening  of  the  next  Old- 
school  Assembly,  this  appropriate  textr  "  Finally,  brethren,  whatsoever 
things  are  true,  whatsoever  things  are  honest,  whatsoever  things  are  just, 
whatsoever  things  are  pure,  whatsoever  things  are  lovely,  whatsoever 
things  are  of  good  report;  if  there  be  any  virtue,  and  if  there  be  any 
praise,  think  on  these  things."     Philipp.  iv.  8. 


MR.  RANDALL'S  ARGUMENT. 

The  question  raised  by  the  pleadings  is,  whether  Dr.  Green  and  his 
three  co-defendants  were  trustees  of  the  General  Assembly  of  the  Pres- 
byterian Church  in  the  United  States  of  America,  on  the  24th  of  May, 
1838.  The  verdict  of  the  jury  was  that  they  were  not.  That  this 
question  should  be  tried  again  is  now  asked. 

It  involves  two  questions:  the  first  in  regard  to  the  exscinding  resolu- 
tions of  1837,  and  the  second  in  regard  to  the  deposition  of  Dr.  Elliott 
from  the  office  of  Moderator,  and  the  appointment  of  Dr,  Beman  in  his 
place.     This  court  has  a  right  to  examine  both. 

The  first  is  the  most  important:  the  second  but  ancillary  and  subordi- 
nate. 

To  understand  the  former,  it  is  necessary  to  understand  the  constitution 
of  the  Church.  Form  of  Gov.  Chaps.  VIII.  IX.  X.  &c.  ^nte,  23,  4, 
155.  A  Presbytery  may  be  composed  of  ministers  alone;  may  exist 
without  embracing  a  single  church.  Chap.  X.  Sect.  7 — %Bnte  23. 
,/issem.  Big.  53,  4.  This  shows  that  the  existence  of  Congregational 
churches  within  the  exscinded  Synods  does  not  vitiate  their  constitution. 

It  is  evident  from  the  history  of  the  General  Assembl)^  for  some  years 
past,  that  the  two  parties  are  very  nearly  equal  in  strength:  which  side 
has  the  real  majority  is  still  undecided.  The  differences  between  the  two 
are  rather  in  words  than  any  thing  else. 

The  "  Plan  of  Union"  existed  previously  to  the  Revolution;  and  having 
been  suspended  during  the  war,  was  renewed  by  the  invitation  of  the 
General  Assembly,  immediately  on  the  passage  of  the  act  incorporating 

64 


506  PRESBYTERIAN  CUVRCU  CAS£. 

that  body.  Similar  arrangements  had  been  proposed  or  entered  into  by' 
the  General  Assembly,  with  the  Associations  of  Vermont,  Massachusetts, 
and  New  Hampshire,  and  with  the  Dutch  Reformed  and  Associate  Re- 
formed Churches. 

The  objection,  that  the  "  Flan  of  Union"  should  have  been  Sent  down 
to  the  Presbyteries  for  approval,  is  of  no  force.  The  provision  of  the 
Constitution,  that  requires  amendments  to  be  sent  down  to  the  Presbyte- 
ries, relates  to  general  regulations,  and  not  to  the  admission  of  an  indi- 
vidual, or  a  body  of  individuals  into  the  Church.  The  practice  of  the 
General  Assembly  has  been  uniform  on  thi«  subject,  rn  all  instances. 
Resolutions,  admitting  delegates  from  corresponding  bodies  to  sit  and 
vote,  have  been  adopted  and  repealed,  without  sending  them  down  to  the 
Presbyteries.  The  regulations  admitting  ordained  ministers  and  elders 
from  other  Protestant  churches,  without  re-ordifiation,  have  been  adopted 
in  the  same  manner,  although  the  Assembly  has  for  a  series  of  years  here- 
tofore refused  such  admission.  A  considerable  portion  of  the  present 
church  hold  their  seats  by  the  same  tenure,  under  the  union  with  the 
Associate  Reformed  Church,  including  the  Moderator  of  1836,  (Dr.  Phil- 
lips,) and  the  gentleman  who  officiated  as  chairman  of  several  commit- 
tees, appointed  by  the  Assembly  of  1837,  (Dr.  Junkin.)  Dr.  Green  has 
declared,  that  the  legality  of  the  union  with  the  Associate  Reformed 
Church  has  never  been  denied.  At  all  events,  an  acquiescence  of  thirty- 
six  years  removes  all  such  objections.  The  amended  constitution  of  1821 
incorporated  all  these  materials,  as  a  part  of  the  Church.  Every  Pres- 
bytery in  the  Church  has  thus  recognised  the  "Plan  of  Union,"  and  this 
subsequent  ratification  amounts  to  the  same  thing  as  a  previous  consent. 

What  is  the  "  Plan  of  Union  ?"  It  provides  two  things  only,  which 
are  of  any  importance  in  the  present  inquiry:  1st.  That  a  Presbyterian 
clergyman  may  preach  to  a  Congregational  church;  or  to  a  congregation 
partly  Presbyterian  and  partly  Congregational :  2d.  That  in  the  case  of 
any  difficulties  arising  between  him  and  his  people,  or  between  a  mixed 
ehurch  and  one  of  its  Presbyterian  members,  certain  modes  of  arbitra- 
ment may  be  adopted  by  the  parties,  for  an  amicable  settlement  of  their 
disputes;  one  of  which,  in  the  case  of  an  appeal  to  the  Presbytery,  per- 
mits a  member  of  the  standing  committee  of  a  mixed  church  to  sit  and 
rote  as  an  ordained  elder. 

A  minister  acquires  his  right  to  sit  in  Presbytery  by  his  oi'dination; 
and  that  right  is  entirely  independent  of  his  being  the  pastor  of  any 
church.  This  is  exemplified  in  the  case  of  an  evangelist  who  is  ordained,^ 
without  being  set  over  any  congregation,  but  may  preach  as  a  missionary 
to  all,  Congregationalists  as  well  as  Presbyterians,  or  even  to  infidels  and 
pagans,  still  retaining  his  seat  in  Presbytery.  A  minister  too,  who  resigns 
his  charge,  does  not  thereby  lose  his  seat.  >. 

The  exscinding  resolutions  take  it  for  granted,  that  the  five  hundred 
and  nine  ministers,  five  hundred  and  ninety-nine  churches,  and  sixty 
thousand  communicants,  all  came  in  under  the  "  Plan  of  Union;"  but 
this  is  not  so.  Indeed,  not  a  single  minister  could  be  admitted  under  it. 
It  cannot  be  disputed,  that  all  these  five  hundred  and  nine  ministers,  at 
least,  are  strictly  Presbyterian.  The  exscinding  resolutions,  then,  must 
stand  on  their  own  merits:  they  receive  no  support  from  the  previous 
abrogation  of  the  "  Plan  of  Union."    It  has  been  said,  that  in  the  Synod 


MR.  RANDALL'S  ARGUMENT. 


50^ 


of  the  Western  Reserve,  containing,  at  the  time  of  the  excision,  one 
hundred  and  thirty-nine  churches,  there  were  but  thirty  Presbyterian 
churches.     This  vv^e  deny  :  there  is  no  proof  of  the  fact. 

Court  adjourned. 

WEDNESDAY  MORNING,  April  24th— 10  o'clock. 

By  whatever  name  the  exscinding  resohitions  may  be  called,  their  true 
character  cannot  be  a  matter  of  doubt.  What  was  exscinded  ?  Not  only 
the  four  Synods,  but  all  tlieir  component  parts :  all  the  Presbyteries,  all 
the  Presbyterian  churches,  and  every  individual  Presbyterian  within  their 
.limits. 

They  were  cut  off  without  accusation,  proof,  or  trial.  The  few  persons 
only  who  were  present  in  the  Assembly,  as  the  representatives  of  the 
whole,  had  the  least  notice.  The  news  of  the  actual  excision  was  the 
first  that  reached  the  rest.  Men  born  in  the  Church,  patriarchs  of  seventy 
years,  found  themselves  excluded,  without  having  received  any  intimation 
that  their  rights  were  a  subject  of  dispute. 

The  whole  region  embraced  within  the  four  Synods,  was  declared  to  be 
infected  ground — was  desecrated.  Expulsion  from  the  Church  depended 
merely  on  the  domicil  of  the  individual.  Had  Dr.  Green  lived  in  the 
western  part  of  the  state  of  New  York,  or  in  the  Western  Reserve  of 
Ohio,  he  would  have  been  excluded  among  the  rest. 

In  the  year  1799,  before  the  adoption  of  the  present  constitution,  the 
Presbytery  of  New  York  included  twenty-one  churches,  of  which  eleven 
are  among  the  number  of  exscinded  churches.  Some  of  these  churches 
were  in  existence  before  any  individual  who  voted  for  the  exscinding  reso- 
lutions was  a  member  of  the  Church;  and  they  have  continued  to  exist 
without  interruption,  and  have  been  recognised  by  the  General  Assembly 
without  any  regard  to  the  "  Plan  of  Union."  The  Assembly  of  1837 
admitted,  that  whole  Presbyteries  and  churches  within  the  proscribed 
and  infected  districts,  were  regular  and  in  good  standing;  and  provided 
also  a  mode  for  their  re-admission  into  the  Church.  The  exclusion  for  a 
day,  a  month,  a  year,  or  for  life,  was  equally  a  violation  of  the  rights  of 
the  exscinded  bodies  or  individuals.  The  mode  provided  for  regress 
into  the  Church  is  illusory,  as  to  gain  re-admission,  it  is  necessary  to 
undergo  the  same  examination  which  persons  undergo  on  their  first  appli- 
cation. 

The  Presbyteries  within  the  exscinded  Synods  have  contributed  at 
least  ^200,000  to  the  different  funds  of  the  Church. 

The  excision  is  said  to  have  been  but  a  dissolution  of  the  four  Synods, 
and  the  Presb)^teries  attached  to  them.  It  is  however  a  very  different 
thing.  Besides,  we  deny  that  the  Assembly  has  the  power  to  dissolve 
inferior  judicatories,  where  intermediate  rights  have  become  vested.  The 
power  to  create  does  not  necessaril}'^  carry  with  it  the  power  to  destroy. 
Can  Congress  turn  the  State  of  Missouri  out  of  the  Union? 

The  second  question — that  in  regard  to  the  organization  of  1838 — is 
subordinate  to  the  other,  and  involves  no  great  principles. 

The  clerks  of  1837  were  pledged  to  carry  out  the  acts  of  that  year. 
The  Minutes  (Old-school)  of  1838,  speak  of  a  pledge.     Jlnte,  65.     It 


50S  PRESBYTERIAN  CHURCH  CASE. 

was  their  duty  to  disregard  those  acts  and  to  put  the  exscinded  commis- 
sioners on  the  roll.  The  refusal  of  the  clerks  either  to  enrol  them  or 
report  them  to  the  Assembly,  and  the  subsequent  conduct  of  the  Modera- 
tor in  refusing  to  put  the  motions  made  to  rectify  the  misbehaviour  of 
the  clerks  were  overt  acts  of  a  conspiracy  to  carry  into  effect  the  uncon- 
stitutional resolutions  of  1S37. 

The  Moderator  is  the  mere  servant  of  the  house:  he  can  do  no  act  but 
by  the  will  of  the  majority.  An  appeal  from  his  decision  is  the  right  of 
every  member.  Jeff-  Man.  {Sutherland)  122.  Dr.  Elliott's  refusal  to 
put  the  question  on  Dr.  Mason's  appeal  was  a  breach  of  privilege,  which 
authorized  any  member  of  the  Assembly  to  move  for  his  dismission  from 
office. 

The  Moderator  or  Speaker  of  any  deliberative  Assembly  may  be 
removed.  Jeff.  Man.  105.  The  Moderator  of  the  preceding  Assembly, 
presiding  over  the  organization  of  the  new  body  is  by  no  means  exempt 
from  liability  to  removal.  He  sits  only  until  a  new, Moderator  is  chosen. 
Jinte^  155.  Mr.  Cleaveland's  motion  was  substantially  a  proceeding  to 
remove  Dr.  Elliott  from  office  for  this  breach  of  privilege.  It  was  per- 
fectly intelligible  and  sufficiently  loud  to  be  heard  b}^  all.  Every  mem- 
ber had  therefore  an  opportunity  to  vote,  and  all,  who  under  such  circum- 
stances were  silent,  must  be  presumed  to  have  acquiesced. 

According  to  parliamentary  rules,  when  the  commissions  of  the  com- 
missioners to  the  General  Assembly  of  1838,  were  referred  to  the  Com- 
mittee of  Commissions,  they  could  not  be  restored  to  the  Assembly  for 
its  action,  but  by  the  report  of  that  committee.  Therefore  the  refusal  of 
the  clerks  was  a  gross  violation  of  duty. 

The  Moderator  could  not  without  absurdity,  put  the  question  for  his 
own  removal;  nor  did  the  duty  under  such  circumstances  devolve  upon 
the  clerks.  They  were  participes  criminis,Oind  would  not  have  put  the 
motion  if  they  had  been  required. 

The  New-school  are  opposed  to  all  exclusions.  They  are  ready  to 
admit  even  those  who  like  Haman  of  old  have  fallen  into  their  own 
snare. 

Absolute  identity  of  opinion  and  belief  throughout  the  Church  is  not 
to  be  expected.  But  unimportant  differences  should  be  overruled.  Or, 
if  the  two  parties  must  separate,  let  them  do  it  amicably,  according  to  the 
patriarchal  advice — Genesis  xiii.  9.  "  Is  not  the  whole  land  before  thee? 
Separate  thyself,  I  pray  thee,  from  me:  if  f/ioii  ivilt  take  the  left  hand, 
then  I  will  go  the  right;  or  if  thou  depart  to  the  right  hand,  then  I  will 
go  to  the  left." 


509 


MR.  SERGEANT'S  ARGUMENT. 


May  it  please  your  Honours: — We  can  see  but  obscurely  what  is 
before  us— I  mean  what  is  in  our  presence — and  judge  imperfectly  of 
the  past:  as  to  that  which  is  future — I  do  not  pretend  to  be  able  to  say 
vvliat  will  be  the  probable  conclusion  of  this  matter.  I  shall  not,  there- 
fore,, accept  the  challenge  given  in  the  close  of  the  argument  on  the  other 
side,  and  venture  to  predict  what  would  be  the  effect  of  your  decision  to 
support  the  verdict  of  the  jurj'  in  this  case.  The  counsel  for  the  relators 
have  told  us,  that  such  a  decision  would  be  productive  of  peace;  that  it 
would  bring  together  again  those  who  are  now  so  widely  separated.  But 
that  has  been  tried;  they  were  together;  and  after  all  that  has  been  dis- 
closed in  the  course  of  the  trial  of  this  cause,  I  think  every  one  ought  to 
be  very  cautious  in  cherishing  a  desire  to  force  them  together  again.  If 
I  understand  the  subject,  this  is  the  main  ground  of  one  portion  of  the 
objection  made  to  the  decision  of  the  court  and  jury — that  the  rights  and 
the  powers  of  the  General  Assembly,  the  highest  and  the  final  judicatory 
of  the  Presbyterian  Church,  as  well  as  of  all  its  subordinate  judicatories, 
are  purely  spiritual  and  moral.  It  so  happens,  that  deeming  these  to  be 
matters  between  every  man  and  his  own  conscience,  in  which  no  human 
tribunal  has  the  authority  to  interfere,  we  consider  an  attempt  to  force  us 
into  any  religious  connexion  whatever,  a  direct  violation  of  our  most 
sacred  rights.  We  suggest  now,  that  such  an  attempt  would  be  uncon- 
stitutional, and  inconsistent  with  spiritual  liberty;  that  it  would  strike  at 
the  root  of  the  great  principle  of  our  institutions,  namely,  that  spiritual 
concerns  are  not  to  be  interfered  with  by  the  civil  power.  These  parties 
can  never  come  together  but  by  consent — never  in  the  world,  but  of  their 
own  free  choice.  The  idea  of  forcing  one  mass  of  people  to  sit  at  the 
same  spiritual  table  with  another,  implies,  in  the  first  place,  the  power  of 
searching  into  the  hearts  of  men;  for,  without  it,  who  could  tell  the 
consequences  of  such  an  union?  I  take  it,  then,  that  the  position  of  the 
learned  counsel  is  not  correct.  I  go  for  freedom — for  no  force  from  any 
quarter.  We  shall  presently  see  whether,  notwithstanding  all  that  we 
have  sufiered  in  name  and  character,  we  are  not  the  real  champions  of 
spiritual  liberty.  I  believe  we  are.  And  at  the  same  time  it  will  appear, 
whether  the  effort  of  the  minority  is  not  to  deprive  us  of  that  liberty,  to 
force  us  into  an  association  with  those  whom  we  do  not  choose  to  be 
with;  whether  their  prominent  object  is  not  to  compel  us  to  abandon  all 
our  rights,  or,  what  is  equivalent,  to  give  up  the  great  right  of  choosing 
our  associates.     An  effort  in  itself  strongly  repulsive. 

This  is  the  most  dangerous  power  that  a  civil  tribunal  has  ever  been 
called  upon  to  exercise.  Your  Honours  have  enough  to  do,  enough  of 
trouble  and  perplexity,  in  determining  those  cases  upon  which  you  must 
decide.  What  you  are  here  called  to  do,  is  to  open  for  the  subjects  of 
your   inquiry   and  labour,  a  new   source   of  conflict  and  litigation,  of 


510  PRESBYTERIAN  CHURCH  CASE. 

unknown  extent.  None  can  define  its  limits,  or  control  the  spirit  of 
discord  which  it  will  pour  forth.  We  have  warned  our  opponents — not 
threatened,  as  has  been  intimated — we  have  warned  them  of  the  litiga- 
tion that  would  follow  their  proceedings;  but  it  is  for  litigation  that  they 
seem  to  have  sought.  Every  church,  Presbytery,  and  Synod  in  the 
land,  must  decide  this  question  for  itself:  that  is  as  plain  as  it  can  be. 
Nay,  every  individual  Presbyterian  must  engage  in  the  contest.  And 
how  will  you  limit  the  violent  spirit  of  litigation,  if  the  law  is  once 
thrown  open  to  these  parties?  Observe  what  effects  it  has  already  pro- 
duced. The  minority  of  the  Assembly  of  1S3S  have  certainly  done  a 
great  deal,  if  they  have  accomplished  what  the  charge  of  his  Honour 
Judge  Rogers  decides  that  they  have  accomplished.  If  the  matter  be 
not  too  serious  to  joke  about,  following  the  example  of  those  who  have 
preceded  me,  in  some  degree,  though  perhaps  speaking  more  innocently, 
I  would  say,  that  the  proceeding  by  which  the  minority  in  that  Assem- 
bly claim  to  have  manoeuvred  the  majority  out  of  doors,  was  one  of  the 
greatest  practical  hoaxes  ever  seen  or  heard  of.  I  mean  to  say  that  no 
man  can  look  seriously  at  the  thing,  uninfluenced  by  any  respect  to  who 
shall  succeed  at  last,  but  he  must  so  regard  it.  I  do  not  speak  now  of 
the  decision  of  the  law:  so  \\\e  facts  strike  me,  and  so  I  think  they  must 
strike  every  one.  I  say  that  these  gentlemen,  if  they  succeed  here,  will 
have  accomplished  a  great  deal;  but  the  rest  that  they  will  have  to  do — 
what  remains  to  be  accomplished,  they  will  find  more  difficult,  weightier, 
more  distracting.  Let  us  tell  them  that  much  trouble  and  confusion 
would  be  avoided  if  the  admonition — I  will  not  quote  Scripture — the 
admonition  to  let  spiritual  bodies  decide  on  spiritual  questions,  were  duly 
observed.  I  intend  to  show,  before  I  have  done  with  the  case,  that  this 
is  an  attempt  to  strip  the  General  Assembly  of  that  power;  to  place  it  in 
the  hands  of  the  tribunals  of  the  land;  and  so  to  place  it  in  a  manner 
which  leads,  I  will  not  say  to  the  shame  of  religion,  but  to  the  disparage- 
ment and  disgrace  of  its  ministers,  so  far  as  disparagement  and  disgrace 
can  be  brought  upon  those  holy  officers.  What  length  of  years,  what 
venerable  character,  what  stock  of  service  and  of  merit,  will  ever  serve 
as  a  shield?  The  very  first  act  of  power  performed  by  the  new  body 
which  met  in  the  First  Presbyterian  Church,  was  to  direct  a  bolt  at  the 
head  of  the  onl}-^  remaining  trustee  of  those  originally  incorporated  by 
the  act  of  1799.  Their  first  act  was  an  act  of  rough  excision.  The  first 
exercise  of  their  newly  obtained  power  was  aimed  at  him  who  had  held 
his  office  from  1799  to  183S — forty  years  lacking  one.  Your  Honours 
may  see  in  this  the  spirit  with  which  we  are  threatened:  you  may  see  it 
even  in  the  argument  of  the  cause  in  this  court.  All  must  grant  that  in 
my  learned  friend's  remarks  upon  Dr.  Elliott's  text,  and  in  his  offer  to 
furnish  him  with  a  more  appropriate  one,  the  same  spirit  is  manifested, 
not  originating  in  him,  but  within  the  compass  of  the  supposed  trium- 
phant party,  who,  flushed  by  their  fancied  victory,  begin  immediately  to 
claim  cognizance  of  the  conscience  and  the  heart,  and  charge  Dr.  Elliott 
with  having,  while  in  the  performance  of  a  solemn  religious  service,  in 
the  very  presence  of  his  Maker,  used  that  text  from  impure  motives. 
From  the  beginning  to  the  end  of  the  trial  of  this  case,  I  am  sorry  to  say, 
but  say  it  because  I  felt  it — during  the  short  time  that  I  was  able  to  be  in 
court,  I  felt,  and  I  am  sure  my  colleagues  felt — I  hope  my  clients  did  not 


M.  SERGEANT'S  ARGUMENT.  5jj 

feel — that  we  were  in  the  midst  of  a  pelting  teiripest,  a  torrent  against 
■tvhich  it  seemed  almost  vain  to  make  resistance.  The  same  spirit,  may 
it  please  your  Honours,  has  been  manifested  in  the  course  of  this  discus- 
sion, and  if  at  last  the  Assembly  of  1S3S,  and  the  Old-school  party  are 
condemned,  it  will  be  not  because  of  their  acts,  but  because  we  have 
undertaken  to  know  what  is  in  their  hearts,  and  judge  that  we  have  dis- 
covered there  sinister  motives  and  designs.  We,  I  have  said,  are  the  true 
champions  of  spiritual  liberty  and  of  the  rights  of  conscience.  And  how- 
ever much  we  may  have  suffered,  if  our  cause  is  just,  it  must  prevail:  all 
must  come  back  to  the  plain  ground  of  the  constitution  and  laws,  and 
leave  such  disputes  as  this,  which  cannot  be  adjusted  by  the  civil  power, 
to  the  tribunals  of  the  Church,  and  to  Him  who  shall  be  the  final  judge 

.  of  all. 

Now,  may  it  please  your  Honours,  the  general  question  which  is  pre- 
sented in  this  case  is,  whether  we  are  not  entitled  to  have  a  new  trial. 
Great  interests  are  confessedly  involved  in  it.  The  question,  as  regards 
our  country,  is  one  of  vast  magnitude — in  some  aspects  of  it,  none  greater 

.  can  arise;  and  certainly  there  can  be  none  in  which  the  respective  cham- 
pions of  the  two  parties  are  entitled  to  greater  consideration,  as  regards 
their  motives,  characters,  and  lives.  The  respect  due  to  them,  I  mean  not 
to  violate.  I  do  not  mean  to  speak  a  single  word  of  any  member  of  the 
New- school  party  personally  disparaging,  or  calculated  to  wound  need" 
lessly  his  feelings — I  am  not  instructed  so  to  speak,  nor  would  I,  if  I 
were.  I  will  endeavour,  in  my  reply  to  the  arguments  which  we  have 
heard,  to  maintain  this  principle  inviolate,  treating  with  the  utmost  respect 
the  opinions  of  our  opponents,  so  far  as  it  may  be  practicable,  and  with 
respect  unlimited,  the  opinion  of  his  Honour,  Judge  Rogers.  Yea,  more, 
I  will  in  the  beginning  say,  that  the  learned  judge  had  a  most  difficult  and 
arduous  task  to  perform.  Not  on  account  of  the  mere  novelty  of  the 
case,  though  this  made  it  essential  that  there  should  be  time  and  opportu- 
nity for  cool  discussion  and  careful  consideration.  Look  at  the  great 
amount  of  evidence  contained  in  this  paper  book,  that  has  been  laid 
before  your  Honours.  He  must  search  out  and  gather  from  all  this  mass, 
and  from  the  contrarient  statements  of  the  bar,  the  precise  facts  of  the 
case,  to  which  the  law  was  then  to  be  applied.  And  what  were  his 
means  for  the  performance  of  his  remaining  duty?  Was  he  to  turn  to  the 
common  law?  That  could  give  him  little  aid;  and  our  own  statute  law 
none  at  all.  This  case  introduced  an  entirely  new  system  of  laws;  and 
though  thoroughly  instructed  in  all  the  principles  of  the  law  of  the  landy 
his  Honour  was  required  to  gather,  from  the  scattered  fragments  suddenly 
laid  before  him,  in  the  heat  and  hurry  of  the  trial,  the  whole  law  of  the 
Presbyterian  Church — a  Church  which  has  a  common  law  and  a  statute 
law  of  its  own,  and  a  complete  form  of  government,  not  framed  however 
like  ours,  in  the  exact  distribution  of  distinct  powers.  One  while  a  wit- 
ness occupied  the  stand,  and  gave  in  his  testimony;  then  a  little  was  read 
from  one  pamphlet,  and  then  a  little  from  another;  then  a  rule  of  order; 
and  then  an  article  from  the  Constitution.  Here  was  thrown  in  the  his- 
tory of  a  Synod,  and  there  a  map  containing  the  names  of  certain  judica- 
tories, without  their  boundary  lines.  Amid  all  this,  his  Honour  must 
suddenly  catch  up  just  what  was  necessary  to  the  case,  undisturbed  by  the 
din  and  conflict  below,  so  that  be  might  at  last  instruct  the  jury  as  to  the 


512  PRESBYTERIAN  CHURCH  CASE. 

law  that  was  to  govern  their  verdict.  I  will  not  say,  may  it  please  your 
Honours,  that  it  was  impossible  for  him  to  comprehend  the  matter  to  his 
own  satisfaction,  in  the  course  of  a  single  trial:  I  will  not  undertake  to 
measure  the  utmost  reach  of  human  intellect;  but  I  will  undertake  to  say, 
that  I  trust  and  believe  there  is  no  judge  on  this  bench,  who  would  not 
desire  the  grouiid  thus  gone  over  to  be  reviewed:  and  that,  if  he  has  fallen 
into  any  error,  it  might  be  corrected.  I  do  not  doubt  it;  and  therefore  I 
now  address  his  Honour  as  freely  as  I  do  any  of  his  associates,  under  the 
perfect  conviction,  that  if  he  should  see  any  error,  he  will  not  be  the  last 
to  correct  it.  Now,  we  desire  the  opportunity  of  another  trial;  and  the 
grounds  of  our  application  have  been  already  in  some  degree  disclosed. 
We  undertake  to  show,  from  the  history  of  the  cause,  that  several  parts 
of  our  defence  were  not  allowed  to  have  that  weight  which  should  have 
been  allowed  them.  I  go  farther  and  say,  that  when  the  case  went  to  the 
jury,  and  even  before  it  went  to  them,  there  was  a  manifest  prejudice  in 
their  minds  against  us:  from  what  source  arising,  it  is  not  necessary  for 
me  to  say.  If  the  fact  that  the  verdict  was  rendered  by  a  jury  so  influ- 
enced and  so  prejudiced,  be  substantiated,  that  of  itself  will  be  a  sufficient 
ground  for  demanding  a  new  trial.  I  say  also,  that  the  whole  investiga- 
tion, so  far  as  it  has  been  conducted,  and  the  decision,  to  the  extent  to 
which  it  has  gone,  is  a  manifest  violation  of  our  Constitution — I  mean  the 
Constitution  of  the  Church — of  spiritual  liberty,  and  of  the  rights  of  con- 
science. I  have  already  adverted  to  this  point:  for  an  illustration  of  which, 
I  must  thank  Mr.  Randall.  He  has  told  us,  that  the  effect  of  your 
Honours'  adding  your  sanction  to  the  verdict  of  the  jury,  would  be  to 
force  together  the  two  parties  in  this  controversy.  Now,  if  I  may  be 
allowed  a  few  more  words  in  reply  to  this,  I  will  endeavour  to  suggest 
some  views  of  the  subject,  arising  out  of  it,  tending  to  show  the  pro- 
priety— in  fact,  the  necessity,  of  a  strict  adherence  to  the  constitutional 
principle  to  which  I  have  referred. 

In  the  first  place — and  this  must  already  have  suggested  itself  to  your 
Honours'  minds-^there  are  great  difficulties  and  embarrassments  in  the 
way  of  inquiries  like  that  in  which  we  are  now  engaged,  as  the  present 
case  must  bear  witness.  Is  it  fit  that  this  court  should  entertain  an  appeal 
from  the  General  Assembly?  I  do  not  mean  now  to  inquire  whether  it  is 
fit  that  such  an  appellate  jurisdiction,  where  it  belongs  to  a  civil  court, 
should  be  exercised.  If  your  jurisdiction  be  established,  you  must  take 
cognizance  of  the  appeal.  I  speak  of  the  difficulty — nay,  of  the  impos- 
sibility, of  arriving  at  a  '•ight  conclusion  in  such  a  case.  Need  I  point 
out  the  grounds  of  difficulty?  I  will  call  your  attention,  for  a  moment, 
to  the  resolutions  of  the  Assembly  of  1837,  which  have  given  rise  to  this 
proceeding — to  either  one,  that  repealing  the  "Plan  of  Union,"  or  that 
exscinding  the  four  Synods,  or  to  both.  Why,  if  an  appeal  be  taken,  in 
regard  to  those  acts,  to  this  tribunal,  your  Honours  must  put  yourselves 
in  the  place  of  the  General  Assembly  itself,  and  decide  what  you  would 
have  done  in  a  similar  case;  whether,  under  the  same  circumstances,  you 
would  have  pursued  the  same  course.  In  this  investigation,  the  very  first 
blow  has  been  aimed  at  the  intentions  and  motives  which  governed  those 
whose  acts  are  called  in  question.  They  are  charged  with  pride,  a  lust 
for  power,  a  desire  to  appropriate  to  themselves  the  funds  of  the  Church: 
every  thing  opprobrious  and  vile  has  been  heaped  upon  them;  and  if  finally 


MR.  SERGEANT'S  ARGUMENT.  513 

our  opponents  efiect  their  purpose,  it  can  be  only  because  those  acts  are 
to  be  considered  as  done,  not  honestly,  but  with  some  sinister  design. 
How  can  your  Honours  undertake  to  decide  this  point? 

Again,  passing  by  the  gross  injustice  which  was  done  us  in  the  outset, 
I  come  to  another  point;  and  here  I  mean  to  be  explicit.  His  Honour, 
Judge  Rogers,  no  doubt  in  the  press  and  hurry  of  the  proceeding,  after 
distinctly  admitting,  that  the  act  abrogating  the  **  Plan  of  Union,"  was 
one  which  the  Assembly  had  a  right  to  perform,  goes  on  to  characterize 
that  act  as  unjust.  No  doubt,  in  the  discussion  of  the  case  at  the  bar,  one 
side  had  maintained  that  it  was  an  unjust  act,  and  the  other  that  it  was 
just.  This  probably  led  his  Honour  to  inquire,  not  only  whether  the  act 
was  lawful,  but  also  as  to  the  other  point  debated.  Now,  I  mean  to  con- 
.tend,  and  therefore  have  brought  this  view  before  you,  that  where  an  act 
is  not  unlawful,  a  court  has  no  right  to  inquire  into  the  motives  which 
influenced  that  act.  And,  for  this  reason;  that  to  decide  as  to  a  man's 
motives,  you  must  place  yourself  exactly  in  his  position,  and  take  the 
same  views  of  every  thing  that  he  does,  else  you  cannot  judge  properly. 
If  the  General  Assembly  has  a  right  to  do  any  act,  it  is  accountable  to  no 
human  tribunal  for  the  manner  in  which  it  may  choose  to  exercise  this 
right.  It  is  a  fundamental  doctrine,  that  so  long  as  any  one  keeps  within 
the  precincts  of  his  legitimate  powers,  he  cannot  in  law  be  affected  by  his 
thoughts,  words,  or  deeds.  Your  Honours  have  seen,  that  in  another  part 
of  the  charge  to  the  jury — that  relating  to  the  organization  of  the  Assem- 
bly of  1838 — the  learned  judge  has  in  a  like  manner  treated  Dr.  Elliott, 
the  clerks,  and  a  portion  of  the  Old-school  party;  inquiring  into  their 
motives,  characterizing  acts  otherwise  right,  from  the  motives  with  whioh 
they  were  performed,  as  a  conspiracy.  I  do  not  know  whether  a  conspi- 
racy had  been  charged  upon  us,  even  in  the  discussion  at  the  bar.  Cer- 
tainly such  a  charge  could  not  be  applicable,  it  being  once  decided,  that 
our  acts  were  lawful — such  as  we  had  a  right  to  perform. 

There  is  great  cause  here  for  the  court  to  ponder  deeply,  and  examine 
well  the  ground  on  which  they  stand;  and  another  reason  for  this  may 
be  added  to  those  already  mentioned.  Before  your  Honours  arrive  at 
the  end  of  this  case,  I  am  persuaded  you  will  fiind,  that  if  these  parties 
are  left  to  themselves,  the  public  at  large,  and  the  friends  of  religion  will 
not  have  more  cause  to  deplore  the  result,  than  has  been  furnished  in  the 
present  investigation.  They  were  in  their  own  proper  arena,  two  par- 
ties contending  for  Avhat  they  considered  their  respective  rights;  one 
remained  upon  the  ground,  while  the  other  betook  themselves  to  another 
place.  The  latter  have  appealed  to  a  court  of  law,  and  drawing  their 
adversaries  out  of  their  ordinary  and  appropriate  place,  have  compelled 
them  to  join  in  the  conflict  and  strife  of  a  mere  temporal  tribunal, 
where  are  commonly  dealt  with  matters  that  engage  the  feelings  and 
arouse  the  passions — there  is  no  telling  how  far  the  inflammation  may 
extend.  Whatever  may  be  the  result  or  the  influence  of  this  proceeding, 
if  hereafter  it  be  found  that  it  has  brought  scandal  on  religion — if  indeed 
that  be  in  the  power  of  man,  which  I  do  not  believe — or  disparagement 
upon  its  professors  and  ministers,  this  cannot  be  imputed  to  us.  Those 
who  brought  the  case  here  are  alone  responsible  for  the  issue.  And  if 
they  have  raised  the  shout  of  victory  once,  they  may  possibly  yet  see  the 
time,  as  they  advance  in  life,  as  the  shadows  of  their  closing  day  lengthen, 

65 


514  PRESBYTERIAN  CHURCH   CASE. 

and  the  distance  before  them  becomes  contracted,  when  they  may  find 
occasion  to  mourn  the  events  that  have  separated  them  entirely  from 
these  good  men.  In  the  course  of  the  events  of  this  world,  those  who 
are  allowed  to  live  to  old  age,  must  find  coming  after  them  many  younger 
than  themselves,  of  an  active,  bustling,  and  aspiring  spirit,  seeing  places 
above  them  which  are  objects  of  their  ambition;  who  if  they  can  discover 
a  good  precedent  to  sustain  them,  in  cutting  off  their  elders,  will  not  fail 
to  follow  the  example.  Nor  is  that  all.  This  spirit  once  abroad  in  the 
Church,  who  will  allay  its  violence?  I  do  not  fear  that  any  man  will 
accomplish  the  destruction  of  the  Church:  it  is,  as  I  believe,  founded 
upon  a  rock.  But  who  can  exorcise  that  spirit  when  it  is  once  raised? 
Nobody.  If  it  begin  its  domination  in  injustice — in  the  prostration  of 
one  of  those  venerable  props  which  support  the  Church — a  pillar  on 
which  it  rests,  and  which  has  stood  for  half  a  century,  no  part  of  the 
building  can  ever  be  secure. 

These  are  times  of  restless  inquiry,  of  storm  and  struggle.  And  your 
Honours  will  see  the  spirit  of  the  limes  clearly  exemplified  in  every  part 
of  this  controversy.  What  is  likely  to  be  the  effect  of  its  supremacy? 
Mark  it,  and  mark  it  in  connexion  with  the  phrases  which  have  fallen 
from  the  honourable  gentlemen  on  the  other  side.  The  only  remain- 
ing trustee  of  those  appointed  in  1799,  he  who  had  been  respected 
amid  all  the  changes  of  party,  was  the  first  object  of  attack.  The  body 
that  assembled  in  the  First  Presbyterian  Church  has  set  us  an  excellent 
example,  says  Mr.  Randall;  they  have  appointed  no  minister  of  the  Gos- 
pel a  trustee.  Here  is  exactly  the  thing  of  which  I  am  speaking — that 
wisdom — that  young  but  confident  wisdom,  which  would  exalt  itself 
above  all  the  experience  of  the  past,  above  all  other  wisdom.  These 
gentlemen  have  not  only  no  respect  for  their  predecessors — they  may 
treat  them  as  they  please — but  they  have  no  respect  for  the  law.  That 
act  of  the  legislature  by  which  these  trustees  were  incorporated,  gives 
one  third  of  the  number  ministers,  and  this  arrangement  has  been  made 
the  pattern  in  all  subsequent  times,  until  the  new  light  has  burst  upon  us, 
showing  all  past  wisdom  to  be  folly.  It  seems  that  there  is  a  concentra- 
tion of  right  in  this  newly  formed  body;  that  the  legislature  were  entirely 
wrong;  their  predecessors  all  vv^rong;  and  that  they  are  to  set  every  thing 
to  rights;  that  is,  in  the  first  place,  they  are  to  set  the  minority  above  the 
majority,  and  then  to  exclude  all  ministers  from  the  board  of  trustees.  I 
do  not,  however,  complain  of  this  at  all.  It  is  our  business  now,  merely 
to  show  why  the  verdict  of  the  jury  ought  not  to  stand.  My  colleague 
has  most  faithfully  discharged  his  duty:  I  could  not  have  wished  for  the 
Church,  when  these  most  important  interests  were  at  stake,  a  friend  of 
greater  learning  and  ability.  Indeed  he  has  gone  into  the  details  of  the 
case  so  fully  and  minutely,  that  all  I  am  astonished  at  is,  that  it  has  not 
been  almost  painful  to  the  court  to  be  obliged  to  listen  to  them,  instruc- 
tive, and  even  essential  as  they  are.  Yet  I  should  feel  myself  obliged  to 
say  as  much — yea,  perhaps  more,  if  I  thought,  as  the  gentlemen  on  the 
other  side  seem  to  think,  that  this  court  was  competent  to  go  to  such 
lengths  in  inquiries  of  this  nature.  In  going  over  what  iny  colleague  has 
said,  I  do  not  see  what  could  have  been  omitted;  especially  as  the  open- 
ing of  the  case  devolved  upon  him. 

I  now  proceed  to  examine  the  grounds  on  which  we  stand.     And  here 


MR.  SERGEANT'S  ARGUMENT.  5J5 

I  shall  not  make  particular  reference  to  the  arguments  of  the  counsel  who 
have  preceded  me,  but  shall  confine  myself  principally  to  the  charge  of 
his  Honour  Judge  Rogers,  embodying  as  it  does  those  views  upon  which 
the  finding  of  the  verdict  rests.  This  finding  was  in  exact  conformity 
with  the  charge:  according  to  it  the  jury  were  bound  to  go:  I  jjresamc 
that  upon  it  their  verdict  was  founded.  To  that  I  shall  therefore  respect- 
fully refer  as  an  authority  for  the  most  correct  views  of  the  grounds  on 
which  the  relators  rest  their  attempt  to  turn  out  six  of  the  present  occu- 
pants of  the  office  of  trustee — one  of  them  an  individual  appointed  by  the 
legislature  itself,  at  the  first  passing  of  the  law. 

The  first  of  these  grounds  is  the  proceeding  of  the  Assembly  of  1837, 
especially  that  which  is  termed  the  exscinding  resolutions.  They  are 
characterized  by  his  Honour  as  utterly  unconstitutional  and  void.  The 
argument  which  I  have  heard  at  the  bar  is,  that  these  resolutions  being 
unconstitutional,  those  who  had  been  excluded  by  them  were  still  entitled 
to  their  places,  and  that  the  Moderator  and  clerks,  in  attempting  to  carry 
out  the  void  acts,  committed,  knowingly  and  intentionally,  a  gross  out- 
rage upon  their  rights.  Then  the  proceedings  of  1837  are  of  no  conse- 
quence in  themselves.  His  Honour  says  that  they  did  not  dismember 
the  Assembly  of  that  year;  that  there  was  a  valid  continuance  of  the  body 
upon  its  dissolution;  therefore  they  are  material  only  as  they  bear  upon 
the  second  subject  of  our  inquiries,  the  proceedings  of  1838;  the  conduct 
of  the  clerks  and  Moderator,  and  of  a  part  of  the  body  itself,  when  certain 
questions  were  put,  as  it  is  said,  by  Mr.  Cleaveland,  Dr.  Beman,  and  Dr. 
Fisher,  standing  in  the  aisle,  two-thirds  of  its  length  from  the  ordinary 
Moderator's  chair,  and  behind  two-thirds  of  the  persons  assembled.  The 
proceedings  of  1837  are  thus  the  basis  of  the  relators'  claim.  They  con- 
tend that  these  were  unconstitutional  and  void;  that  therefore  the  conduct 
of  the  Moderator  and  clerks  was  illegal;  and  that  therefore  they  had  a 
right  to  do  what  they  have  done,  with  all  the  effect  in  law  which  they 
claim  for  it. 

Before  I  proceed  to  a  particular  examination  of  the  acts  of  the  Assem- 
bly of  1837,  I  request  your  attention  to  a  view  of  the  combined  operation 
of  all  the  causes  which  are  here  exhibited,  each  of  them  insufficient  in 
itself  to  produce  the  desired  effect,  but  all  of  them  together,  as  it  is  con- 
tended, of  strength  adequate  to  accomplish  wonders.  Here  we  must  first 
observe  the  remarkable  fact,  that  the  Moderator  and  clerks,  to  whom  had 
been  given  in  charge  the  organization  of  the  Assembly  of  1838,  were  not 
officers  in  the  appointment  of  that  Assembly  at  all;  nay,  that  they  were 
officers  whom,  as  we  shall  show  by-and-by,  it  had  no  right  to  remove, 
and  no  power  to  control.  They  had  been  appointed  by  the  Assembly  of 
1837,  and  by  the  constitutional  law  of  the  Church  continued  in  office  to 
perform  certain  duties  at  the  commencement  of  the  session  of  the  coming 
Assembly,  and  to  perform  those  duties  for  a  certain  time.  The  object  of 
their  continuance  is  plain  enough.  Every  one  sees  that  it  would  never 
do  to  trust  to  the  chances  of  a  proper  organization.  Therefore  a  method 
has  been  provided  for  accomplishing  this  object;  and  it  is  never  left  to  the 
commissioners  who  assemble  to  choose  at  the  moment  a  gentleman  to  pre- 
side, because  the  presiding  officer  has  duties  to  perform  which  he  cannot 
prepare  himself  for  so  suddenly.     In  the  first  place  he  must  preach  a  ser- 


516  PRESBYTERIAN  CHURCH  CASE. 

mon;  then  make  the  constituting  prayer;  the  clerks,  in  the  mean  time,  as 
a  Committee  of  Commissions,  being  engaged  in  the  preparation  of  their 
report  of  commissioners  reguhirly  appointed.  This  being  done,  and  the 
names  of  all  undisputed  members  having  been  put  on  the  roll,  the  first 
act  of  the  Assembly  thus  constituted,  is  to  be  the  appointment  of  a  Com- 
mittee of  Elections,  to  whom  are  referred  all  doubtful  cases.  Of  course 
the  election  of  a  new  Moderator  does  not  take  place  until  all  these  pre- 
liminaries have  been  attended  to.  Until  the  Committee  of  Elections  has 
been  appointed,  the  Moderator  is  Moderator  by  virtue  of  his  commission 
from  the  previous  Assembly.  If,  then,  the  Assembly  has  no  power  to 
remove  him,  he  is  not  accountable  to  them  for  his  conduct,  and  the  same 
thing  is  true  of  the  clerks. 

At  the  trial,  there  was  cited  the  case  of  the  preparative  meeting  of  the 
Friends.  There  the  clerk  puts  no  question  and  calls  for  no  vote  ;  he 
does  not  determine  by  majorities  and  minorities,  but  declares  the  sense  of 
the  meeting,  as  collected  from  the  discussion.  Can  that  meeting  remove 
their  clerk  by  the  vote  of  a  majority  ?  No.  But,  why  not?  Because, 
by  the  rules  of  the  Society  of  Friends,  he  is  to  decide  just  as  your  honours 
sitting  on  that  bench.  The  meeting  has  no  more  power  thus  to  remove 
him,  than  parties  who  are  dissatisfied  with  your  decision  to  remove  a 
judge.  So  it  is  with  the  Moderator  and  clerks  assisting  in  the  organiza- 
tion of  the  new  Assembly.  So  it  was  intended  to  be,  so  it  has  been  and 
is,  and  so  it  must  continue  to  be,  unless  some  other  rule  is  provided. 
Now,  by  these  various  parts  combined,  a  great  effect  is  sought  to  be  pro- 
duced. Each  one  is  as  important  as  any  other — this  by  virtue  of  the 
connexion  of  the  whole,  and  though  it  may  in  itself  considered  have  no  im- 
portance whatever.  The  state  of  the  matter  is  this — the  resolution  of 
1837  did  not  dissolve  the  Assembly;  the  acts  of  the  Moderator  would  not 
have  dissolved  it  ;  the  acts  of  the  clerk  would  not  have  dissolved  it. 
Neither  of  these  would  have  been  sufficient  to  produce  the  effect  ;  neither 
had  any  virtue  of  itself  ;  but  a  virtue  which  they  have  not  themselves, 
they  somehow  impart  to  each  other.  The  compound  made  up  of  ingre- 
dients all  powerless  and  valueless,  had  the  power  to  produce,  and  it  is 
argued,  to  legalize  those  scenes  of  confusion,  disorder,  and  riot,  which 
have  been  here  exliibited.  But,  I  say,  while  it  is  natural  enough  that  on 
the  other  side  such  a  conclusion  should  be  ascribed  to  this  corribination  of 
circumstances,  there  can  be  no  right  to  attribute  it  to  things  which  in 
themselves,  and  taken  singly,  have  it  not;  so  that  the  majority  of  the 
members  in  that  house  assembled,  who,  the  sermon  having  been  preached 
and  the  constituting  prayer  offered,  remained  in  their  places,  while  a  sec- 
tion of  the  body  went  off,  shall  in  effect  be  deprived  of  the  power  and  the 
character  of  the  Assembly,  and  the  minority  thus  gone  off  be  all  in  all. 
No  doubt  this  would  be  the  result  of  allowing  a  factitious  virtue  to  the 
combination  of  circumstances  just  mentioned.  No  doubt  our  opponents 
claim  to  have  driven  us  out  of  doors.  How,  I  will  not  now  say;  but 
unquestionably  those  who  met  in  the  church  in  Ranstead  Court  were  the 
Old-school,  and  those  who  met  in  the  First  Presbyterian  Church  the 
New-school;  those  who  remained  were  the  majority,  and  those  who  went 
away  the  minority.  The  operation  then  of  all  these  causes  combined, 
each  of  which  is  in  itself  of  no  value,  mere  cyphers,  their  conjoint  opera- 


MR.  SERGEANT'S  ARGUMENT.  517 

tion,  according  to  the  view  taken  of  them  by  our  adversaries,  is  to  oblige 
us  to  confess  that  the  majority  are  the  minority,  and  the  minority  the 
majority.  The  majority  must  generally  govern.  No  man  of  ordinary 
understanding,  of  intellect,  uninfluenced  by  legal  technicalities,  can  for  a 
moment  consider  this  a  debateable  question.  Wherever  the  majority  is, 
there  is  concentrated  the  power.  I  shall  not  here  say  a  word  in  praise  of 
this  principle  of  majorities.  It  is  the  principle  of  our  government,  and 
that  is  sufficient  for  our  present  purpose.  It  is  the  principle  of  the  Pres- 
byterian Church,  therefore,  the  majority  of  that  Church  must  at  last 
prevail.  At  an  opposite  conclusion  it  is  very  hard  to  arrive.  The 
accomplishment  of  such  an  end  as  our  opponents  claim  to  have  accom- 
plished, if  not  impossible,  must  at  least  be  against  the  testimony  of  our 
senses.  When  a  person  sees  an  organized  house  regularly  met,  and  after 
a  momentary  scene  of  confusion,  the  majority  remaining,  and  the  minority 
going  forth,  as  distinctly  as  when  a  formal  division  is  made  in  the  British 
House  of  Commons,  it  would  be  very  hard  to  persuade  him,  tliat,  in 
point  of  law,  the  majority  has  become  the  minority,  and  the  minority  the 
majority.  Certainly,  if  in  this  instance  you  so  determine,  it  will  be  the 
first  in  which  such  a  tiling  has  ever  occurred. 

I  know  that  in  the  case  of  a  corporation,  if  it  is  necessary  to  refer  a 
(question  to  all  the  members,  all  having  an  opportunity  to  vote  will  be 
considered  as  voting,  whether  they  actually  vote  or  not,  and  this  whether 
the  vote  is  taken  by  ballot  or  viva  voce.  Provided  all  are  admonished  of 
the  question,  and  it  is  put  by  a  proper  person,  and  they  are  competent  to 
decide  it,  the  majority  must  decide.  But  where  will  you  find  the  case 
in  which  ten,  or  twelve,  or  twenty  of  the  members  of  a  body  have 
come  forward  and  sworn  that  they  did  not  hear  the  question,  tliat  they 
did  not  know  what  was  done,  as  these  say  in  regard  to  the  appoint- 
ment of  Dr.  Fisher,  that  there  was  a  scene  of  wild  disorder  and  confusion; 
when,  in  addition,  the  question  was  not  in  fact  put  from  the  usual  place, 
or  by  any  known  officer  of  the  house,  by  any  one  having  under 
ordinary  circumstances  a  right  to  put  it — show  me,  I  say,  the  case,  that 
has  ever  occurred,  up  to  the  present  time,  in  which  such  a  question  has 
been  adjudged  legally  carried,  when  but  a  small  minority  have  actually 
voted,  and  the  majority  are  known  to  have  been  opposed.  If  a  question 
be  announced  from  the  chair,  all  are  bound  to  give  it  attention,  and  if  a 
vote  be  taken  upon  it,  the  judges  are  not  required  to  notice  those  who 
have  not  chosen  to  vote.  He  who  votes  a  blank  throws  away  his 
suffrage:  those  who  vote  without  being  qualified  are  not  to  be  counted. 
To  all  this  I  agree;  but  the  life  of  these  rules  is,  that  the  question  be 
put  in  such  a  way,  and  by  such  a  person,  that  a  fair  opportunity  of 
voting  is  given  to  all  entitled  to  vote.  I  deny  that  the  case  can  be  pro- 
duced, where  it  has  been  decided,  that  the  members  of  a  house  were 
bound  to  pay  attention  to  two  presiding  officers  at  the  same  time.  Yet, 
as  this  case  is  exhibited,  were  there  not  here  two  presiding  officers,  at 
least  while  Dr.  Elliott  was  in  the  chair,  and  Dr.  Beman  not  yet  elected? 
Well,  then,  in  the  first  place,  as  a  member  of  the  body,  I  must  decide, 
and  decide  instantly,  in  the  hurry  and  confusion  of  a  scene  of  unpa- 
ralleled disorder,  who,  at  the  time  when  the  (juestion  is  put,  is  the 
real  Moderator.  And,  having  decided,  as  I  am  forced  to  do,  and  that 
in  a  moment,  1  ask,  in  the  name  of  common  sense,  of  common  reason, 


518  PRESBYTERIAN  CHURCH  CASE. 

am  I  to  be  considered,  by  intendment  of  law,  to  have  voted  in  the 
affirmative,  because,  thinking  that  the  question  was  not  put  by  the 
proper  officer,  I  have  not  voted:  at  all  ? 

No,  may  it  please  your  Honours,  it  is  impossible  that  this  wonderful 
efficiency  should  be  given  to  these  conjoint  weaknesses.  If  the  acts  of  the 
Assembly  of  1S37,  are  of  themselves  nothing,  the  conduct  of  the  clerks 
nothing,  the  conduct  of  the  Moderator  nothing,  can  all  these  circum- 
stances combined,  and  followed  by  occurrences  of  disorder  and  disorgani- 
zation, setting  every  rule  of  order  at  defiance,  and  calculated  to  blind  and 
mislead,  defeat  the  operation  of  the  fundamental  laws  of  common  right? 
Nay,  if  we  had  called  upon  every  man  in  that  Assembly,  and  all  testified 
that  they  did  not  vote,  that  they  did  not  hear  the  question  put,  that  they 
did  not  know  what  was  done,  still  must  you  have  pronounced  the  question 
to  have  been  legally  carried  ?  And  that  is  not  all  the  objection  in  this  case. 
We  do  not  know  who  voted:  it  could  not  be  ascertained  at  that  stage  of 
the  organization.  We  do  not  know  that  that  loud  "Aye!"  on  which  the 
triumph  of  our  opponents  is  built,  which  supports  the  banner  of  the 
minority,  did  not  proceed  entirely  from  persons  who  had  no  authority 
whatever  to  vote.  Here  I  appeal  to  Judge  Rogers'  charge.  His  Honour 
says,  that  none  but  those  on  the  roll  had  a  right  to  vote.  If  the  question 
had  been  put  by  the  Moderator,  he  would  have  suffered  none  to  vote, 
excepting  those  having  a  right,  according  to  this  decision.  Now,  it  was 
put,  not  'by  the  Moderator  of  either  that  Assembly,  or  the  previous  one, 
not  by  any  person  authorized  to  put  it,  no  matter  whether  Mr.  Cleave- 
land  was  a  member  or  not;  it  was  put  behind  a  multitude  of  the  mem- 
bers; and  we  do  not  know  how  many  joined  in  that  thundering  "Aye!" 
There  is  no  knowing  but  that  it  came  from  men  having  no  shadow  of  a 
title  to  vote. 

These  things  strike  us  at  the  first  blush,  when  we  regard  the  particu- 
lars which  go  to  make  up  the  mass — each  becoming  of  vast  importance, 
when,  in  their  conjoint  operation,  they  are  made  to  form  a  lever,  applied 
to  the  General  Assembly,  overturning  and  breaking  it  up,  when  in  the 
process  of  organization,  and  scattering  its  fragments  to  the  winds — a  spec- 
tacle which  began  in  the  Assembly  of  1837,  has  continued  more  or  less 
visibly  down  to  the  present  time,  and  is  now  continued  in  this  court. 

Court  adjourned. 

THURSDAY  MORNING,  April  25th— 10  o'clock. 

This  matter,  may  it  please  your  Honours,  which  has  been  adverted  to, 
is  one,  with  the  more  particular  consideration  of  which  I  shall  of  course 
detain  you  hereafter — I  mean  the  question  of  order,  which,  in  fact,  is  one  of 
the  principal  points,  as  it  appears  to  me,  in  this  controversy:  one  of  those 
on  which  the  case  hinges.  Before  I  proceed  to  the  examination  of  the  pro- 
ceedings of  1837,  allow  me  to  say  a  single  word  more,  in  connexion  with 
the  remarks  which  I  made  yesterday,  on  a  subject  which  it  may  prove 
important  hereafter  to  have  well  understood.  The  General  AssemJDly  of 
1837,  on  the  last  day  of  its  meeting,  terminated  an  actual  and  legal  session, 
being  until  then  the  Assembly  both  de  facto  and  de  jure.  For  it  is 
distinctly  admitted — his  honour  so  decides  in  his  charge,  and  it  is 
admitted  by  the  argument  at  the  bar— there  is  no  dispute,  that,  whether 


MR.  SERGEANT'S  ARGUMENT.  5I9 

the  proceedings  of  1837  were  right  or  wrong,  they  did  not  dissolve 
the  body,  or  impair  its  capability.  It  is  not  disputed  that  the  last 
exercise  of  power  in  that  Assembly,  the  vote  of  dissolution,  or  the  order 
of  the  Moderator,  .that  it  should  be  dissolved,  and  the  summons  of  a 
new  Assembly,  to  meet  at  a  certain  time  and  place  (which  time  was 
the  day  in  question,  that  on  which  our  opponents  build  their  organization, 
and  on  which  all  the  commissioners  assembled,)  that  all  this  was  a  valid 
proceeding.  Further,  it  is  admitted,  that  a  portion  of  these  commissioners 
were  enrolled  in  1838;  that  the  names  of  those  enrolled  were  duly 
reported;  that  the  Moderator  had  taken  the  chair ;  that  the  clerks  were 
at  the  desk;  and  that  the  body  thus  partially  constituted  was  perfectly 
competent  to  conduct  the  process  of  organization  to  its  completion. 
There  again,  then,  we  were  in  actual  possession,  the  Assembly  both  de 
facto  and  de  jure.  All  this  is  quite  clear;  we  shall  see  how  it  is  con- 
tended that  we  ceased  to  be  such.  I  understand  the  argument  on  this 
point  to  be,  that  the  Assembly  thus  actually  and  lawfully  convened, 
deposed  the  Moderator  who  was  in  the  chair,  and  elected  another,  who 
never  took  the  chair,  but  stood  up  in  the  aisle,  behind  a  considerable 
portion  of  the  members,  having  no  chair  and  no  insignia  of  office,  and 
there  addressed  to  somebody,  or  some  portion  of  the  commissioners,  a 
certain  question  ;  that  this  question  was  then  put,  to  which  we  responded 
by  virtue  of  an  intendment  of  law;  that  while  the  former  Moderator, 
lawfully  appointed  and  actually  in  the  chair,  remained  in  his  place,  and 
the  clerks,  with  a  majority  of  the  house,  remained  in  theirs,  those  who 
had  collected  round  the  new  Moderator  in  the  aisle  went  away,  carrying 
with  them  the  whole  power  of  the  Assembly;  and  that  all  afterwards 
done  by  the  body  remaining  in  the  church  in  Ranstead  Court  was  a 
mistake.  I  have  said  that  this  case  had  no  precedent:  I  have  stated 
reasons  why  such  a  rule  could  not  be  established.  At  present  I  shall 
content  myself,  reserving  this  subject  for  more  particular  examination 
hereafter,  with  saying,  as  I  did  yesterday,  that  no  doubt  the  body 
remaining  did  not  so  understand  the  proceedings  ;  and  further,  that  the 
rules  of  order  of  every  deliberatve  Assembly  requh-e,  that  every  eye  and 
ear  should  be  directed  to  the  chair  as  imperatively  as  it  is  required  that 
ours  should  be  directed  to  this  court.  I  might  as  well  entertain  a  motion, 
or  give  a  judgment  here,  on  the  ground  that  all  who  were  in  court 
were  bound  to  take  notice,  as  might  any  member  of  a  deliberate  body 
usurp  the  authority  of  the  presiding  officer,  and  say  that  the  members 
were  bound  to  listen  to  him.  I  know  of  nothing  like  this  even  in  fiction, 
unless  it  be  in  the  Sam  Slick  story  about  the  clock,  which  is  going  the 
rounds  of  the  newspapers.  I  do  not  intend  to  relate  it.  The  poor  host 
was  fixed  in  front  of  the  clock,  and  as  the  pendulum  moved  he  was  to  say 
"  Here  she  goes  :  there  she  goes  ;"  and  accordingly,  he  began,  "  Here 
she  goes  :  there  she  goes,"  and  continued  the  repetition  in  spite  of  the 
remonstrances  of  his  wife,  but  when  the  time  was  out,  found  that  while 
his  eye  was  fixed  on  the  clock  his  two  guests  had  gone  off,  as  Mr.  Duffield 
said,  "  as  slick  as  a  whistle,"  or  '•'  as  slick  as  could  be,"  carrying  with 
them  his  valuable  effects.  Just  so  this  Assembly,  like  every  other  deli- 
berative body,  had  a  Moderator  and  clerks,  and  these  the  members  were 
bound  to  watch  their  movements.  "  Here  they  go  :  there  they  go,"  they 
were  to  repeat  continually.     But  while  their  attention  was  thus  occupied 


520  PRESBYTERIAN  CHURCH  CASE. 

with  these  officers,  their  rights  were  suddenly  slipped  away  from  them  in 
the  language  of  the  witness,  "  as  slick  as  could  be,^'  or,  as  one  of  the 
counsel  thought  the  words  werli,  "  as  slick  as  grease."  I  do  not  believe 
that  the  New-school  party  came  to  the  church  in  Ranstead  Court  with  any 
such  intention,  or  that  they  had  any  such  idea  when  they  went  away. 
And  I  do  not  see  how  any  body  there  could  be  affected  by  an  intention 
which  they  had  not,  or  which,  at  least,  they  did  not  declare.  I  will  not 
here  say  what  might  have  been  the  effect  of  due  notice  of  such  an 
intention. 

How  do  our  opponents  seek  to  accomplish  their  end?  By  going  back 
to  the  proceedings  of  the  Assembly  of  1837,  which  did  not  di.ssolve  that 
Assembly;  which  had  no  effect  upon  its  rightful  acts;  and  which,  as  we 
contended,  could  have  no  rightful  effect  upon  the  organization  of  1S38. 
What  were  these  proceedings  of  1837?  Let  us  now  examine  that  ques- 
tion. They  consist  of  two  parts — two  essential  parts:  whether  they  had 
any  connexion  with  the  proceedings  of  1838  I  shall  consider  hereafter — 
I  am  satisfied  that  the  manner  in  which  the  two  have  been  thrown 
together  was  improper.  But  for  the  present  let  us  confine  our  attention 
to  the  acts  of  Assembly  of  1837,  to  see  whether  they  are  really  unconsti- 
tutional and  unjust. 

The  measures  of  that  body  which  are  here  called  in  question  are,  first, 
the  abrogation  of  the  Plan  of  Union  of  1801,  and,  secondly,  what  are 
called  the  exscinding  resolutions,  which  were  consequent  upon  the  for- 
mer, flowing  directly  from  it,  deriving  from  it  their  validity,  and  follow- 
ing it  of  necessity,  in  whatever  capacity  you  chose  to  place  them — whether 
they  are  considered  as  judicial  or  as  legislative  acts — at  least  so  following 
it,  in  the  judgment  of  those  who  passed  them.  That  the  ostensible  grounds 
of  those  acts  were  the  true  grounds  on  which  they  were  passed,  I  here 
mean  to  assume;  and  it  is  important  to  understand  at  the  outset,  whether 
we  are  to  believe  that  these  men  sincerely,  honestly,  and  bona  fide  meant 
what  they  declared — that  their  measures  were  really  and  truly  intended 
for  the  good  of  the  Church.  I  protest  solemnly  against  the  right  of  any 
body  to  question  their  motives.  You  cannot  under  the  Constitution  deny 
my  position,  that  these  are  to  be  respected.  Presently,  I  will  read  a  part 
of  the  Constitution  of  Pennsylvania,  bearing  directly,  as  I  think,  upon 
this  point,  and  which  it  is  of  infinite  importance  that  we  should  rightly 
understand.  This  case,  I  believe,  was  lost  before  the  jury,  and,  if  we 
lose  it  here,  will  be  lost  finally,  in  a  great  measure  because  insincerity,  a 
want  of  truth,  the  declaration  of  motives  not  real,  has  been  imputed  to 
my  clients.  On  the  trial — and  the  same  thing  is  very  manifest  in  the 
argument  on  this  motion — the  widest  license  was  taken  in  commenting 
upon  the  character  of  the  Assemblv,  and  contradicting  the  assumption 
which  I  now  make.  I  submit  it,  therefore,  as  a  clear  position,  that  at 
every  tribunal  of  the  commonwealth  of  Pennsylvania,  a  church,  with 
each  party  in  that  church,  is  entitled  to  the  clear  concession  that  what- 
ever it  does  within  the  spirit  of  its  discipline,  is  done  from  the  motives 
which  are  professed.  If  you  do  not  believe  this,  you  cannot  believe  it  to 
be  a  church:  only  a  set  of  hypocrites — sinners  of  the  very  worst  kind. 
When,  therefore,  our  opponents  quote  Scripture,  for  purposes  to  which 
we  think  it  ought  not  to  be  applied,  we  challenge  them  to  show 
their  authority  for  casting  the  first  stone  at  our  motives:  we  do  not  con- 


MR.  SERGEANT'S  ARGUMENT.  521 

sent  to  be  put  on  proof  of  these,  excepting  by  those  to  whom  we  are 
accountable  for  them;  and  we  are  thus  accountable  only  to  the  Church — 
to  ourselves.  The  world  does  not,  and  cannot  govern  us  in  matters  of 
faith  and  conscience.  It  is  then  of  great  consequence,  that  you  consider 
these  acts  to  have  been  performed  honestly,  sincerely,  and  conscientiously, 
for  the  good  of  the  Church — as  my  clients  believed.  We  do  not  claim 
infallibility  for  them,  more  than  for  any  other  men.  Presently  I  shall 
point  your  Honours  to  the  strongest  evidence  of  the  fact,  that  the  true 
reasons  for  their  acts  were  these  on  their  face  exhibited.  But  we  are,  at 
all  events,  entitled  to  assume  it. 

In  entering  upon  the  discussion  of  the  acts  of  1837, 1  have  first  to  pro- 
pound to  this  court  a  great  question,  which  must  be  decided  in  the  outset. 
To  whom  does  it  belong  to  determine,  whether  the  proceedings  of  my 
clients  were  or  were  not  for  the  good  of  the  Church  ?  I  do  not  now  speak 
of  motives.  That  they  were  right,  I  have  assumed;  and  that  this  should 
be  believed,  is  secured  to  us  by  the  fundamental  principles  of  our  govern- 
ment. None  can  call  our  motives  in  question,  so  long  as  we  are  careful 
in  our  observance  of  respect  for  the  laws.  Assuming  this  as  undeniable, 
I  respectfully  demand,  who  is  to  decide  whether  the  acts  of  1S37  were  or 
were  not  for  the  good  of  the  Church?  Or,  supposing  a  certain  end  con- 
fessedly desirable,  who  is  to  decide  how  that  end  should  be  reached  ?  It 
has  been  argued,  that  in  order  to  attain  a  certain  object,  we  were  bound 
to  follow  the  course  of  a  regular  trial,  to  commence  proceedings  in  an 
inferior  judicatory,  unless  where  the  superior  had  original  jurisdiction, 
and  conduct  them  in  regular  judicial  form.  I  do  not  know  how  this  law 
is  to  be  established.  In  the  first  place,  we  have  the  question,  who  is  to 
decide  whether  the  proposed  end  is  for  the  good  of  the  Church  or  not; 
and  then,  who  is  to  decide  how  that  end  may  best  be  attained?  Can  the 
civil  tribunal  prescribe  the  course  of  proceedings  to  be  followed  by  the 
Church?  No.  Suppose  we  say,  "We  do  not  make  any  charge  against 
our  brethren,  with  whom,  in  time  past,  we  have  lived  in  unity:  we  do 
not  mean  to  dismiss  them  with  the  mark  of  heresy  or  other  criminality 
upon  them.  All  that  we  allege  is,  that  they  do  not  live  according  to  the 
discipline  of  our  Church;  that  disorders  may  thence  arise — that  in  our 
opinion,  they  have  already  arisen."  And  suppose  too,  that  the  act  is 
performed  by  a  competent  tribunal,  and  involves  nought  but  a  separation 
of  the  parties.  The  question  is,  not  whether  our  purpose  is  the  best  and 
wisest,  but  who  is  to  judge  whether  it  is  or  is  not  so? — the  Church  or  a 
civil  tribunal?  If  the  latter  can  interfere  at  all,  in  such  matters,  you  had 
better  dissolve  the  whole  system  of  church  government  from  top  to  bot- 
tom. If  we  cannot  follow  our  own  judgment  throughout,  we  had  better 
not  form  any  judgment.  Suppose,  farther,  that  we  consider  not  only  the 
end^  but  also  the  tneans  proposed,  to  be  essential:  both  method  and  end, 
we  maintain,  are  then  for  the  consideration  of  the  Assembly,  and  for  the 
Assembly  alone.  Whatever  method  they  adopt,  is  sure  to  be  protested 
against,  by  some  person  or  other.  But,  suppose  they  select  a  certain 
method,  and  are  conscientious  in  their  choice,  is  the  judgment  of  any 
body  to  interfere?  That  selection  is  as  much  a  matter  of  conscience,  as 
the  final  decision  itself.  The  rights  of  conscience  are  as  clearly  invaded, 
by  interfering  with  the  one  as  the  other.  I  am  speaking  of  the  proceed- 
ings of  the  Assembly  of  1837.     The  consideration  of  them  involves  the 

66 


522 


PRESBYTERIAN  CHURCH  CASE. 


pure  question,  were  they  good  or  bad,  constitutional  or  unconstitutional? 
This  single  question  is  now  proposed  :  I  go  no  farther  at  present.  I  main- 
tain that  no  temporal  tribunal  can  have  cognizance  of  such  an  issue.  I 
do  not  mean  the  question,  which  are  the  legal  trustees,  but  the  single  one 
in  regard  to  the  acts  of  1S37;  and  I  say  that  of  it  no  civil  court  has  cog- 
nizance; that  it  belongs  exclusively  to  the  jurisdiction  of  the  Church. 

I  know,  that  in  this  part  of  the  argument,  I  must  encounter  the  denun- 
ciations of  the  opposite  side.  Why  did  you  not  institute  regular  process? 
Why  did  you  not  give  us  a  trial  and  a  hearing?  Why  did  you  not  do 
this,  that,  or  tlie  other  thing?  Of  course,  wa  expected  them  to  make 
objection  and  find  fault;  we  took  it  for  granted,  they  would  think  that 
any  thing  else  would  have  been  more  acceptable  than  just  what  we  did. 
We  disregard  this  clamor.  But,  as  I  am  well  aware,  we  here  meet  a 
much  more  formidable  obstacle — the  opinion  of  Judge  Rogers,  made  up 
at  the  trial,  and  propounded  in  his  charge;  which,  of  course,  should  be 
very  seriously  weighed — we  should  proceed  with  extreme  caution,  step 
by  step,  before  arriving  at  a  conclusion  contrary  to  his.  And  I  do  not 
know  that  I  have  ever  bestowed  upon  any  single  subject,  more  thought 
than  I  have  upon  this,  to  view  it  in  every  aspect,  to  understand  its  bear- 
ing in  every  particular,  that  I  might  not  be  led  into  a  false  track — to 
avoid  error  in  judgment;  and  the  more  especially,  because  my  opinion 
was  contrary  to  that  expressed  in  the  charge.  I  will  state  the  grounds  of 
my  conclusion,  acknowledging,  at  the  same  time,  that  I  am  liable  to  error: 
possibly  I  am  in  error  here.  I  think  I  am  not.  I  am  happy  that  his 
Honour,  Judge  Rogers,  agrees  with  us  in  one  important  point.     He  says, 

"  I  have  been  requested  by  the  respondents'  counsel  to  instruct  you,  that 
the  introduction  of  lay  delegates  from  Congregational  establishments  into 
the  judicatories  of  the  Presbyterian  Church,  was  a  violation  of  the  fun- 
damental principle  of  Presbyterianism,  and  in  contravention  of  the  act  of 
the  legislature  of  Pennsylvania,  incorporating  the  trustees  of  the  Church; 
that  any  act  permitting  such  introduction,  would  therefore  have  been  void, 
although  submitted  to  the  Presbyteries.  As  an  abstract  question  on  this 
point,  1  give  an  affirmative  answer,  although,  gentlemen,  I  am  unable  to 
see  the  bearing  it  has  on  the  matter  at  issue  in  this  cause."    Ante,  470. 

In  another  part  of  the  charge,  which  I  have  not  time  to  read,  his 
Honour  gives  the  opinion,  that  the  act  repealing  the  Plan  of  Union  of 
1801,  was  not  liable  to  any  legal  objection,  was  entirely  valid.  His 
opinion  therefore  is  in  favour  of  the  abrogation.  Of  this  I  am  very  glad, 
because  the  subject  has  been  earnestly  discussed,  and  the  opposite  counsel 
have  pronounced  the  abrogation  unconstitutional  and  void.  And  here  is 
the  key  of  the  whole  matter.  From  the  assumption  that  it  was  unconsti- 
tutional and  void,  the  proceedings  of  the  New-school  in  183S  derive  all 
their  virtue.  Now  let  us  endeavour  soberly,  seriously,  and  quietly,  to 
look  at  this  matter. 

First,  let  us  look  at  the  nature  of  the  thhii;  done — that  is  to  say,  let 
us  inquire  whether  it  was  a  purely  spiritual  and  moral  act,  or  whether  it 
had  any  touch  or  admixture  of  a  civil  nature.  To  determine  this,  I  refer 
to  the  resolutions  themselves.  Vid.  ante,  p.  37.  I  need  call  your  strict 
attention  to  the  third  only,  but  the  whole  should  be  taken  in  connexion; 
and  should  bo  taken — I  cannot  too  often  repeat  this — every  word  spoken 
should  be  taken,  as  coming  directly  from  the  heart:  you  must  consider 


MR.  SERGEANT'S  ARGUMENT.  523 

these  gentlemen  to  have  meant  what  they  have  here  said;  if  you  do  not, 
we  cannot  proceed  at  all. 

"  In  regard  to  the  relation  existing  between  the  Presbyterian  and  Con- 
gregational churches,  the  committee  recommend  the  adoption  of  the 
following  resolutions:" 

That  is,  in  regard  to  the  voluntary  association  hitherto  existing;  for  I 
maintain,  that  whatever  constitutes  a  voluntary  association,  this  was  one; 
and  as  such  it  is  treated  throughout  these  acts.  In  fact  every  religious 
association  is  voluntary. 

"  1.  That  between  these  two  branches  of  the  American  Church,  there 
ought,  in  the  judgment  of  this  Assembly,  to  be  maintained  sentiments  of 
mutual  respect  and  esteem,  and  for  that  purpose  no  reasonable  effort 
should  be  omitted  to  preserve  a  perfectly  good  understanding  between 
these  branches  of  the  Church  of  Christ." 

Here  is  exactly  the  spirit  which  I  have  before  described.  We  wish  to 
abrogate  the  "  Plan  of  Union,"  but  we  are  not  going  to  denounce  you  as 
wanting  in  either  doctrine  and  faith,  or  form  of  government  and  discip- 
line— to  assert  that  you  are  not  a  Church.  By  no  means.  We  desire  to 
live  in  peace  with  you,  and  not  to  quarrel.  If  you  choose  to  maintain 
your  own  form  of  worship  as  before,  we  shall  not  on  that  account  respect 
you  the  less.  All  that  we  say  is,  that  Presbyterianism  and  Congrega- 
tionalism are  immiscible:  when  associated  one  destroys  the  discipline  of 
the  other:  the  union  produces  confusion  and  disorder."  You  see  a 
specimen  of  this  in  Mr.  Bissell's  case,  ( Vid.  ante,  p.  11,)  by  which  the 
Assembly  was  distracted  to  the  length  of  a  protest.  He  was  neither  an 
elder  or  committee-man,  and  yet  claimed  a  seat  in  the  Assembly,  and 
was  admitted.  This  was  only  one  occurrence  to  be  sure,  yet  it  was,  in 
itself,  sufficient  to  condemn  the  "  Plan  of  Union."  That  is  no  longer  an 
Assembly  of  either  Presbyterians  or  Congregationalists — an  Assembly  in 
which  one  man,  coming  through  the  channel  of  no  Church,  claims  a  seat, 
and  all  feel  bound  to  admit  him. 

"  2.  That  it  is  expedient  to  continue  the  plan  of  friendly  intercourse, 
between  this  Church  and  the  Congregational  Churches  of  New  England, 
as  it  now  exists." 

"  3.  But,  as  the  '  Plan  of  Union,'  adopted  for  the  new  settlements  in 
1801,  was  originally  an  unconstitutional  act  on  the  part  of  that  Assembly — 
these  important  standing  rules  having  never  been  submitted  to  the 
Presbyteries — and  as  they  were  totally  destitute  of  autliority  as  proceed- 
ing from  the  General  Association  of  Connecticut,  which  is  invested  with 
no  power  to  legislate  in  such  cases,  and  especially  to  enact  laws  to  regulate 
churches  not  within  her  limits  ;  and  as  much  confusion  and  irregularity 
have  arisen  from  this  unnatural  and  unconstitutional  system  of  union, 
therefore,  it  is  resolved,  that  the  Act  of  Assembly  of  ISOl,  entitled  a 
'  Plan  of  Union,'  be,  and  the  same  is  hereby  abrogated." 

That  plan  was  entirely  voluntary  from  beginning  to  end.  Now  in  the 
judgment  of  the  Assembly,  sufficient  grounds  for  the  abrogation  existed, 
and  none  can  say  that  they  did  not  exist.  It  is  asserted  that  the  plan  was 
originally  unconstitutional — they  don't  say,  however,  that  it  was  a  con- 
stitutional regulation,  nor  what  character  precisely  it  bore;  but  speak  only 
of  certain  "  important  standing  rules" — whether  constitutional  rules  or 
not  is  left  undecided.     It  was  a  system  of  rules,  and  as  such,  not  binding 


524  PRESBYTERIAN  CHURCH  CASE. 

unless  sent  down  to  the  Presbyteries,  and  by  them  approved.  Admit 
that  it  was  unconstitutional,  and  no  doubt  the  Assembly  had  a  right  to 
abrogate  it  ;  and  besides  being  lawful,  the  abrogation  was  certainly 
expedient,  if  the  plan  had  introduced  disorders,  and  threatened  others  still 
more  serious.  My  clients  say  that  it  had.  This  being  alleged  by  the 
Assembly,  it  was  clearly  an  adequate  ground  for  their  proceeding.  What 
objections  are  urged  against  the  abrogation  of  the  "  Plan  of  Union  ?"  On 
the  supposition  that  the  plan  was  constitutional,  it  is  contended  that  it  was 
a  compact  ;  as  if  in  agreements  purely  spiritual,  there  can  be  any  con- 
sideration, by  reason  of  which  the  compact  can  be  enforced,  though  a  party 
is  desirous  of  rescinding  it,  because  it  is  productive  of  mischief.  When  a 
contract  or  bargain  is  made  between  man  and  man,  it  is  perfectly  well 
understood  that  this  is  cognizable  by  the  law  :  our  constitution  recognises 
such  contracts,  and  you  have  a  doctrine  of  consideration  applicable  to 
them.  You  may  have  a  contract  cognizable  by  the  civil  law,  in  which 
legal  obligation  mingles  with  that  which  is  purely  moral;  but  here  you 
have  no  mixture,  nothing  whatever  that  is  worldly:  if  binding  at  all,  this 
agreement  is  binding  only  in  conscience.  Where  you  have  nothing  like 
a  consideration,  you  can  have  no  contract  that  can  be  enforced  at  law. 
You  cannot  keep  joined  by  the  sanction  of  law  elements  which  have  come 
together  on  the  principle  of  voluntary  association.  How,  then,  is  such 
an  agreement  to  be  determined  ?  Evidently  by  the  will  of  the  majority. 
The  majority  on  either  side  m.ay  resolve  that  its  operation  shall  cease. 
The  resolution  then  that  I  have  read  abrogated  the  plan  of  1801,  and  it  is 
abrogated:  it  ceases  to  have  any  force. 

Next  comes  a  series  of  resolutions,  resting  on  the  supposition  that  the 
"Plan  of  Union"  was  unconstitutional  and  void,  which  are  merely  admin- 
istrative. I  do  not  m.ean  to  say  whether  they  are  legislative  or  judicial, 
because  we  do  not  find  the  government  of  the  Presbyterian  Church 
divided,  like  our  national  government,  into  three  distinct  and  well  defined 
branches;  but  I  call  them  simply  administrative,  as  they  were  passed  to 
carry  into  effect  that  which  was  already  adopted.  I  might  have  referred 
to  the  protest  against  the  other,  but  leave  that  for  the  present.  Here  is 
the  first  of  the  resolutions: 

"That  in  consequence  of  the  abrogation,  by  this  Assembly,  of  the  Plan 
of  Union  of  ISOl,  between  it  and  the  General  Association  of  Connecti- 
cut, as  utterly  unconstitutional,  and  therefore  null  and  void  from  the 
beginning,  the  Synods  of  Utica,  Geneva,  and  Genesee,  which  were 
formed  and  attached  to  this  body,  under  and  in  execution  of  said  "Plan 
of  Union"  be,  and  are  hereby  declared  to  be,  out  of  the  ecclesiastical 
connexion  of  the  Presbyterian  Church  of  the  United  States  of  America, 
and  that  they  are  not  in  form  or  in  fact,  an  integral  portion  of  said  church." 
Ante,  46. 

On  which  resolution,  the  ayes  and  noes  being  called,  it  was  carried  by 
a  majority  of  twenty-seven,  one  not  voting.  This,  then,  so  far  as  I  have 
gone,  declares  simply  the  practical  effect  of  the  abrogation.  If  such  was 
its  practical  effect,  all  that  the  General  Assembly  did,  in  passing  this  reso- 
lution, was  purely  administrative.  They  made  known  to  their  own 
churches,  and  gave  notice  to  those  associated  with  them,  what  the  effect 
of  the  abrogation  was,  and  then  adjudicated  accordingly.  What  is  the 
next  resolution  ? 


MR.  SERGEANT'S  ARGUMENT.  525 

"  2.  That  the  solicitude  of  this  Assembly  on  the  whole  subject,  and  its 
urgency  for  the  immediate  decision  of  it,  are  greatly  increased,  by  reason 
of  the  gross  disorders  which  are  ascertained  to  have  prevailed  in  those 
Synods,  (as  well  as  that  of  the  Western  Reserve,  against  which  a  decla- 
rative resolution,  similar  to  the  first  of  these,  has  been  passed  during  our 
present  session,)  it  being  made  clear  to  us,  that  even  the  Plan  of  Union 
itself,  was  never  consistently  carried  into  effect  by  those  professing  to  act 
under  it," 

"It  being  made  clear  to  us" — To  whom  else  could  it  be  made  clear? 
Shall  we  bring  the  evidence  of  the  fact  before  your  Honours  ?  Suppose 
we  tell  you,  that  these  men  who  have  come  in  under  the  "Plan  of  Union," 
are  Baptists,  or  Episcopalians,  Independents,  or  Roman  Catholics,  or  Jews; 
your  Honours  will  say,  that  you  have  no  right  to  inquire  into  such  mat- 
ters. What  business  has  any  civil  court  to  judge  of  a  man's  religious 
persuasion,  to  say  that  he  is  a  disorderly  member  of  a  church?  We  are 
not  a  judicatory  of  the  Presbyterian  Church.  We  are  not  the  Sanhedrin. 
We  are  not  the  representatives  of  any  particular  part  of  the  Church,  or 
the  general  representatives  of  the  whole  Church.  An  individual,  or  a 
Church,  is  deemed  disorderly,  because  of  a  violation  of  the  constitution 
of  the  Church.  But  such  disorder  cannot  be  presented  to  the  sight  of 
your  Honours,  acting  under  the  law,  because,  in  the  eye  of  the  law,  every 
creed  and  every  form  of  worship  is  fit  and  proper.  How  can  a  civil  court 
resolve  itself  into  a  religious  tribunal,  and  that  the  tribunal  of  a  particu- 
lar sect,  to  determine  questions  of  doctrine  and  of  conscience?  I  admit, 
that,  in  the  case  of  trusts,  your  Honours  must  sometimes  decide  upon  the 
identity  of  a  Church.  But,  suppose  you  were  called  upon  to  make  such 
a  decision,  what  evidence  could  you  have,  that  such  persons  were  or  were 
not,  part  of  a  denomination?  Would  not  the  judgment  of  the  Church  to 
which  they  professed  to  belong,  owning  or  disowning  them,  be  the  best 
and  only  evidence?  It  must  be  so.  Therefore,  the  statements  made  in 
the  second  resolution,  must  be  taken  as  true  :  That  the  urgency  of  the 
Assembly  is  "greatly  increased,  by  reason  of  the  gross  disorders  which 
are  ascertained  to  have  prevailed;  *  *  *  it  being  made  clear  to  us,  that 
even  the  Plan  of  Union  itself  was  never  consistently  carried  into  effect, 
by  those  professing  to  act  under  it" — As  your  Honours  see  in  the  case  of 
a  person  admitted  to  the  Assembly,  who  was  not  entitled  to  a  seat  in  it, 
either  one  way  or  the  other. 

"  3.  That  the  General  Assembly  has  no  intention  by  these  resolutions, 
or  by  that  passed  in  the  case  of  the  Synod  of  the  Western  Reserve,  to 
affect  in  any  way  the  ministerial  standing  of  any  members  of  either  of 
said  Synods."  The  Synods  themselves  are  laid  down  and  dissolved,  but 
none  of  the  ministers,  unless  such  as  have  been  guilty  of  falsehood  in 
alleging  themselves  Presbyterians,  are  affected.  "  Nor  to  disturb  the 
pastoral  relation  in  any  church."  How  then  can  it  be  said  that  these 
pastors  and  people  have  been  subjected  to  such  difficulties  and  penalties  as 
have  been  described?  "  Nor  to  interfere  with  the  duties  or  relations  of 
private  christians  in  their  respective  congregations;  but  only  to  declare 
and  determine  according  to  the  truth  and  necessity  of  the  case,  and  by 
virtue  of  the  full  authority  existing  in  it  for  that  purpose,  the  relation  of  all 
said  Synods,  and  all  their  constituent  parts  to  this  body,  and  to  the  Pres- 
byterian Church  in  the  United  States." 


526  PRESBYTERIAN  CHURCH  CASE. 

Then  comes  the  fourth  resolution:  "  That  inasmuch  as  there  are 
reported  to  be  several  churches  and  ministers,  if  not  one  or  two  Pres- 
byteries, now  in  connexion  with  one  or  more  of  said  Synods,  which  are 
strictly  Presbyterian  in  doctrine  and  order,  be  it,  therefore,  farther  re- 
solved, that  all  such  churches  and  ministers  as  wish  to  unite  with  us,  are 
hereby  directed  to  apply  for  admission  into  those  Presbyteries  belonging 
to  our  connexion  which  are  most  convenient  to  their  respective  locations; 
and  that  any  such  Presbytery  as  aforesaid,  being  strictly  Presbyterian  in 
doctrine  and  order,  and  now  in  connexion  with  either  of  said  Synods  as 
may  desire  to  unite  with  us,  are  hereby  directed  to  make  application,  with 
a  full  statement  of  their  cases,  to  the  next  General  Assembly,  which  will 
take  proper  order  thereon.'^ 

Now  in  that  part  of  the  charge  which  refers  to  this  last  resolution 
{Jinte  467),  there  seems  to  be  an  error  in  the  printing,  which  has  crept 
in  somehow  or  other,  I  cannot  see  exactly  how.  But  certainly  the  para- 
graph appears  to  involve  a  contradiction.  His  Honour  says,  "  There  is 
no  mistaking  the  character  of  these  resolutions.  It  is  an  immediate  disso- 
lution of  all  connexion  between  the  four  Synods  and  all  their  constituent 
parts,  and  the  General  Assembly.  They  are  destructive  of  the  rights  of 
electors  of  the  General  Assembly,  The  connexion  might  be  renewed,  it 
is  true,  by  each  of  the  Presbyteries  making  application  to  the  next 
General  Assembly,  but  they  are  at  liberty  to  accept  or  refuse  them,  pro- 
vided they,  the  General  Assembly,  deem  them  strictly  Presbyterian  in 
doctrine  and  order."  His  Honour,  I  suppose,  means  to  say  that  the 
Assembly  might  receive  them  if  strictly  Presbyterian.  Here  then,  in 
the  next  sentence,  I  think  there  is  an  error.  "  As  they  had  the  right  to 
admit  them,  they  had  the  right,  also,  to  refuse  them,  unless,  in  their 
opinion,  they  were  strictly  Presbyterian  in  doctrme  and  order."  Now 
as  I  understood  the  meaning  of  this,  it  is,  that  the  Assembly  would  have 
no  right  to  refuse  these  Presbyteries  if  they  were  Presbyterians,  which 
seems  inconsistent  with  the  previous  sentence.  Or,  perhaps,  the  error  is 
in  the  former  part:  certainly  the  Assembly  never  meant  to  refuse  any 
strictly  Presbyterian  in  doctrine  and  order. 

Judge  Rogers.  They  were  to  decide  whether  they  were  Presbyterian 
or  not. 

Mr.  Sergeant.  But  they  were  to  receive  them  if  they  were  Presby- 
terian, and  I  say,  according  to  this  resolution,  they  will  receive  all  such 
that  apply.  If  any  are  not  Presbyterian,  of  course  they  will  not  be  ad- 
mitted into  the  Presbyterian  Church.  Thus  these  resolutions  save  the 
rights  of  both  ministers  and  people,  pastors  and  their  flocks,  so  far  as 
possible,  inviting  all  who  hold  the  Presbyterian  doctrines  to  come  into 
the  Church,  the  Assembly  promising  to  receive  them  with  open  arms. 
Never  up  to  this  time  has  any  thing  been  done  in  degradation  of  the 
rights  of  such.  But  the  "Plan  of  Union"  has  been  productive  of  disor- 
der. The  disorder  is  charged  not  upon  individuals,  but  upon  the- "  Plan." 
Now  the  question  is,  whether  the  Assembly  had  the  power  thus  to  re- 
medy the  disorder. 

Consider  next  the  nature  of  the  body  by  which  the  act  was  done. 

As  to  one  point  there  will  be  no  dispute:  that  the  General  Assembly 
is  the  highest  tribunal  of  the  Presbyterian  Church.  What  are  its  precise 
powers  I  shall  not  now  attempt  to  define.     What  constitutes  a  church,  in 


MR.  SERGEANT'S  ARGUMENT.  537 

its  scriptural  sense  as  it  was  established  from  the  beginning,  and  exists  at 
the  present  day — I  mean  a  Christian  church?  A  body  of  men  who  pro- 
fess sound  doctrine,  maintain  good  discipline,  and  enforce  a  right  form  of 
government.  Each  one  of  these  is  as  essential  as  another:  I  do  not  sup- 
pose that  a  church  was  ever  organized  upon  a  different  plan.  I  am  aware 
that  it  is  a  very  common  thing  to  disregard  doctrine,  discipline,  and 
government,  to  hold  a  rigid  adherence  to  them  as  sectarism  and  bigotry, 
as  an  undue  opposition  to  all  other  denominations.  Exactly  in  propor- 
tion as  zeal  abounds  are  Christians  charged  with  bigotry,  with  being 
zealots  in  an  offensive  sense — having  too  much  zeal  against  their  neigh- 
bours. If  bigotry  means  a  zeal  for  sound  doctrine,  and  good  discipline,  I 
regret  that  we  have  not  more  of  it.  Sectarism  was  the  very  thing  that 
the  reformation  sought  and  did  accom.plish — that  those  who  thought  alike 
should  freely  associate  together.  Is  a  character  for  zeal,  attached  to  any 
sect,  a  reproach?  If  it  engenders  persecution  it  is  to  be  deprecated:  if  it 
be  only  a  deep  conviction  of  the  importance  of  sound  doctrine,  strict  dis- 
cipline and  wise  government,  no  matter  how  ardent  it  is  :  it  will  be 
ardent  if  it  be  sincere.  Zeal  is  the  very  fuel  of  a  pure  and  heart-dwelling 
religion.  If  a  Church  is  without  this  fuel,  it  is  without  vital  religion  ;  and 
not  only  the  outer  court,  but  the  whole  temple  is  a  place  for  merchandize: 
the  desecration  is  worse  than  that  of  the  temple  at  Jerusalem.  The  pur- 
suits of  this  world  are  constantly  inviting  every  man  away  from  the  duties 
of  religion.  Few  have  time  for  thought  and  reflection  upon  these  im- 
portant subjects,  with  the  exception  of  the  small  company  of  devoted 
men,  who,  whether  their  motives  be  good  or  bad,  have  voluntarily  re- 
signed themselves  to  poverty — for  so  it  is  with  the  clergy  of  this  land — 
that  they  may  be  ever  ready  to  sound  an  alarm  in  the  ears  of  those  who 
are  constantly  in  danger  of  disregarding,  fatally  disregarding,  the  great 
truths  which  so  deeply  concern  all  mankind.  Though  some  may  hold 
doctrine  to  be  immaterial,  discipline  of  no  consequence,  and  government 
a  trifling  matter,  they  are  very  far  from  being  so.  Religion  was  made 
for  man;  and  in  a  most  admirable  book  written  by  ]Mr.  Wilberforce,  it  is 
very  truly  said,  that  man's  religion  is  nought  if  it  does  not  enlist  his  feel- 
ings, as  well  as  his  reason  and  understanding.  He  says  truly,  that  religion 
was  made  for  man;  and  man  is  what  we  find  him,  a  creature  of  feeling, 
appetite,  passion,  reason,  and  conscience,  all  of  which  exist  in  some  few 
persons  in  measurable  harmony,  but  in  most  keep  up  perpetual  conflict, 
the  voice  of  reason  being  too  often  drowned  in  the  clamour  of  her  more 
noisy  companions.  Therefore,  discipline  and  government  are  absolutely 
necessary  in  the  Church. 

"A  particular  church,"  says  the  Constitution,  "  consists  of  a  number  of 
professing  Christians  with  their  offspring,  voluntarily  associated  together, 
for  divine  worship  and  godly  living,  agreeably  to  the  Holy  Scriptures; 
and  submitting  to  a  certain  form  of  government." — Form  of  Gov.  Ch. 
II.  Sec.  4  Such  is  the  Presbyterian  definition,  and  the  true  definition  of 
a  church.  There  must  be  submission  to  a  particular  form  of  government. 
This  is  the  description  of  a  church  in  general :  there  can  be  no  doubt  that 
the  Presbyterian  Church  corresponds  with  the  requirement.  Here  are 
enumerated  all  the  particulars  necessary  to  that  Church:  it  "  consists  of  a 
number  of  ])rofessing  Christians,  with  their  offspring,  voluntarily  asso- 
ciated together,  for  divine  worship  and  godly  living,  agreeably  to  the  Holy 


528  PRESBYTERIAN  CHURCH  CASE. 

Scriptures  ;  and  submitting  to  a  certain  form  of  government."  There 
can  be  no  single  church  without  these.  No  judicatory  can  exist  which 
is  not  the  representative  of  snch  churches.  The  highest  judicatory  re- 
presents all  the  churches  of  this  kind  which  voluntarily  submit  to  its 
jurisdiction.  Then,  does  it  not  follow  that  a  system  of  government  is 
absolutely  necessary  ? 

Of  what  are  the  judicatories  of  the  Presbyterian  Church  composed?  I 
do  not  mean  to  assert  that  this  is  better  than  any  other  Church:  that  is 
not  a  lawful  argument,  under  our  Constitution.  It  is  a  voluntary  associa- 
tion; and  those  who  compose  it,  may  stay  or  g,o,  just  as  they  please.  The 
question  of  its  merits,  is  not  the  question  here:  that  is,  for  its  own  mem- 
bers, a  matter  of  opinion;  and  all  who  do  not  like  its  particular  form  of 
government,  may  withdraw  at  their  own  pleasure.  How  are  its  councils 
composed?  Of  ordained  ministers  only?  Not  so;  but  of  ministers  and 
elders:  by  them  representing  the  Church,  in  its  various  judicatories,  be- 
ginning with  the  lowest,  the  church-session,  its  government  is  conducted. 
Any  body  has  a  perfect  right  to  find  fault  with  this  arrangement.  It  is 
good  for  those  who  like  it:  /believe  that  it  is  good  in  itself  If  the  pre- 
servation of  the  altar  and  the  sacred  flame,  require  a  peculiar  care,  it  is 
well  that  those  who  devote  their  lives  to  this  service,  should  declare  by  a 
public  and  solemn  ceremony,  that  they  do  intend  thus  to  devote  them; 
giving  the  only  pledge  in  their  power,  that  they  indeed  mean  assiduously 
to  watch  over  the  spiritual  concerns  of  the  Church.  If  any  say  that  mere 
laymen  can  as  well  execute  this  holy  oflice,  I  will  not  dispute  with  them, 
but  I  will  claim  to  be  of  a  different  opinion.  Is  there  here  any  mixture 
of  civil  right?  There  is  a  church,  but  the  people  may  attend  it  or  not, 
just  as  they  please,  and  it  may  be  open,  though  they  do  not  choose  to 
attend.  It  does  not  follow,  that  because  they  do  not  come,  the  minister 
and  elders  may  not  offer  them  the  opportunity  of  religious  improvement, 
of  hearing  the  dispensation  of  the  Gospel.  As  to  the  mere  building,  the 
pews,  the  church  does  not  pretend  to  have  any  thing  to  do  with  them:  it 
is  independent  of  the  civil  corporation  by  which  they  are  held.  Any 
one  may  have  a  sitting,  or  a  pew,  who  chooses  to  pay  for  it.  So,  at  least, 
it  is  in  many  Churches:  perhaps  there  is  but  one,  where  none  that  are  not 
of  the  Church,  are  permitted  to  hold  pews.  This,  then,  is  the  definition 
of  a  Church:  First,  it  is  a  voluntary  association;  secondly,  established 
"  for  divine  worship  and  godly  living,  agreeably  to  the  Holy  Scriptures;" 
and,  thirdly,  "submitting  to  a  certain  form  of  government."  All  these 
are  material  to  its  existence;  and  they  are  things  which,  as  I  understand 
the  Constitution  of  Pennsylvania,  are  by  it  left  entirely  to  the  Church 
itself,  and  to  every  man's  conscience.  What  says  the  Constitution?  This 
part  of  it  has  undergone  no  change,  in  the  recent  revision:  I  wish  I  could 
say  as  much  of  the  whole.  The  third  section  of  the  Declaration  of 
Rights,  guarantees  certain  religious  rights,  reserved  out  of  those  delegated 
to  the  government — not  granted  to  the  legislature,  the  judiciary,  or  the 
executive. 

"  All  men  have  a  natural  and  indefeasible  right  to  worship  Almighty 
God  according  to  the  dictates  of  their  own  consciences;  no  man  can,  of 
right,  be  compelled  to  attend,  erect,  or  support  any  place  of  worship,  or 
to  maintain  any  ministry  against  his  consent;  no  human  authority  can,  iu 
any  case  whatever,  control  or  interfere  with  the  rights  of  conscience;  and 


MR.  SERGEANT'S  ARGUMENT. 


529 


no  preference  shall  ever  be  given,  by  law,  to  any  religious  establishments 
or  modes  of  worship." 

This  provision  is  carefully,  studiously,  and  redundantly  written,  with  a 
view  to  fence  round  conscience,  to  fence  round  the  Church,  so  that  the 
civil  authorities  may  not  even  look  into  them,  unless  to  see  that  the  peace 
of  society  is  preserved;  for  all  denominations  are  bound  to  obey  the  laws 
of  the  land,  according  to  the  precept  of  Christ,  who  inculcated  every  civil 
duty,  the  payment  of  every  lawful  tribute;  but  the  conscience  we  hold 
sacred.  What  right  has  the  civil  power  to  interfere  with  conscience? 
If  certain  forms  of  government  and  discipline  are  part  of  the  belief  of  a 
Church,  conscience  has  as  much  to  do  in  the  maintenance  of  these,  as  in 
the  preservation  of  sound  doctrine.  And  it  is  my  right  of  conscience  to 
choose  such  form  of  religion  as  I  may  think  best.  U  I  do  not  like  the 
denomination  with  which  I  am  connected,  at  any  moment  I  may  depart: 
if  the  majority  of  the  sect  do  not  like  me  they  may  turn  me  out.  I  don't 
know  of  any  other  rule.  I  might  be  turned  out  of  the  Presbyterian 
Church  because  I  did  not  submit  to  its  government  and  discipline,  but  the 
wide  world  would  be  before  me,  and  I  at  liberty  to  chose  my  associates. 
If  I  desired  to  join  the  Congregationalists  I  might  do  it:  if  I  chose  to 
attend  as  a  hearer  in  a  Presbyterian  place  of  worship,  I  should  not  be 
excluded.  It  might  be  supposed  from  the  argument  which  has  been 
addressed  to  the  court,  that  these  men  were  turned  out  to  starve — to 
starve  for  lack  of  spiritual  food. 

When  a  question  arises  in  regard  to  any  thing  which  in  our  judgment 
interferes  with  the  proper  administration  of  discipline,  which  produces 
disorder  and  confusion,  and  endangers  sound  doctrine,  how  is  it  to  be 
settled?  Here  comes  into  operation  the  established  principle  of  our 
republican  constitution — for  the  government  of  the  Presbyterian  Church 
bears  a  close  affinity  to  our  national  government.  We  may  alter 
that  constitution  whenever  we  see  fit.  How  is  this  to  be  done?  By 
the  vote  of  the  majority.  What  rule  will  you  establish  other  than 
that  which  prevails  in  the  civil  affairs  of  state — the  rule  that  the 
majority  shall  govern?  Whenever  the  majority  decide  any  question  it 
is  finally  settled,  unless  you  have  recourse  to  some  other  principle  of 
government.  But  the  power  of  the  majority  is  annulled  if  their  decision 
may  be  overborne,  if  it  may  be  referred  to  another  tribunal  for  correc- 
tion. Look  at  the  instance  of  these  resolutions  of  the  Assembly  of  1S37. 
How  were  they  decided?  By  a  majorit}^ — there  can  be  no  doubt  of  that. 
They  concern  discipline,  government  and  doctrine.  Then  it  was  a  right- 
ful decision.  The  majority  alone  could  decide  in  such  matters.  And 
more  than  this,  the  decision  being  according  to  conscience,  it  is  not  our 
right  to  interfere.  If  the  Assembly  is  left  to  itself  there  is  nothing  to  be 
apprehended:  alien  interposition  must  lead  to  trouble  and  difficulty.  If 
evil  results  from  their  measures  they  alone  are  responsible  for  it.  Now 
let  us  get  back  to  the  plain  language  of  the  Constitution;  and  where  does 
it  give  to  a  civil  court  the  right  of  interference  in  matters  of  conscience — 
the  right  of  deciding  on  spiritual  concerns?  If  the  civil  power  claims 
authority  to  prescribe  or  modify  our  religious  creed,  this  is  manifestly 
wrong — an  usurpation  of  authority;  yet  not  more  so  than  an  interference 
with  ecclesiastical  government  and  discipline.  Every  church  has  a  right 
to  settle  these  matters  for  itself;  and  that  any  other  power  should  inter- 

67 


530  PRESBYTERIAN  CHURCH  CASE. 

pose  to  expound  their  ci-eed,  or  to  prescribe  ecclesiastial  laws,  is  destruc- 
tive of  spiritual  liberty.  It  has  become  very  much  the  fashion  of  late  to 
speak  against  creeds.  If  a  creed  is  to  he  enforced  by  any  measure  of 
compulsion,  let  it  be  admitted  that  our  liberties  would  be  in  greater  dan- 
ger than  if  mere  civil  rights  were  attacked,  our  rights  of  property,  our 
security  of  life  and  limb.  But  if  a  church  establi.^hes  a  certain  creed, 
what  right  have  I  to  go  in  among  its  members  when  I  do  not  receive  that 
creed?  And  what  riglit  to  remain  among  them  when  I  cease  to  believe 
in  its  doctrines?  I  may  be  right  and  they  wrong,  but  still,  I  am  no  more 
at  liberty  to  overturn  the  fundamental  principles  of  their  faith,  because  it 
does  not  agree  with  mine,  than  is  a  man  to  disturb  the  peace,  because  he 
does  not  like  a  republican  government.  The  creed  is  but  the  agreed 
principle  of  association  ;  the  common  faith,  which  is  the  ground  of 
union.  No  man  is  bound  to  adopt  the  creed.  But  no  man  has  a  right 
to  insist  upon  being  a  member  of  the  society  without  adopting  it,  or  to 
remain  so  after  he  has  ceased  to  believe  in  it. 

Now  in  the  constitution  of  the  Presbyterian  Church  we  find  the  sanc- 
tion of  that  authority  which  the  Church  exercises  in  all  its  br<1nches.  I 
read  from  the  "  Preliminary  Principles"  to  the  Form  of  Government, 
section  eighth.  "  Zr/^/Zy,  that  if  the  preceding  scriptural  and  rational 
principles  be  steadfastly  adhered  to,  the  vigour  aud  strictness  of  its  disci- 
pline will  contribute  to  the  glory  o-nd  happiness  of  any  church.  Since 
ecclesiastical  discipline  must  be  purely  moral  or  spirUiail  in  its  object, 
and  not  attended  with  any  civil  effects,  it  can  derive  no  force  whatever, 
but  from  its  own  justice,  the  approbation  of  an  impartial  public,  and  the 
countenance  and  blessing  of  the  great  Head  of  the  Church  universal." 
And  again,  chapter  eighth  of  the  Form  of  Government,  section  second: 
"These  assemblies  ought  not  to  possess  any  civil  jurisdiction,  nor  to 
inflict  any  civil  penalties.  Their  power  is  wholly  moral  or  spiritual,  and 
that  only  ministerial  and  declarative.  They  possess  the  right  of  requir- 
ing obedience  to  the  laws  of  Christ;  and  of  excluding  the  disobedient  and 
disorderly  from  the  privileges  of  the  church.  To  give  efficiency,  how- 
ever, to  this  necessary  and  scriptual  authority,  they  possess  the  powers 
requisite  for  obtaining  evidence  and  inflicting  censure:  They  can  call 
before  them  any  offender  against  the  order  and  gove-rnment  of  the  Church; 
they  can  require  members  of  their  own  society  to  appear  and  give  testi- 
mony in  the  case;  but  the  highest  punishment  to  which  their  authority 
extends,  is  to  exclude  the  contumacious  aud  impenitent  from  the  congre- 
gation of  believers." 

Here  then  is  the  whole  sanction  of  the  jurisdiction  exercised  by  the 
Church — that  moral  or  spiritual  power  which  operates  by  means  exclu- 
sively its  own,  and  is  not  to  be  interfered  with  by  the  civil  authority. 
How  is  the  great  frame  work  of  the  Presbyterian  Church  to  be  maintained 
in  its  established  order?  Here  is  that  frame  work.  First,  the  congrega- 
tion, governed  by  its  own  session;  then  the  Presbytery;  thirdly  the 
Synod;  and  then  a  power  above  al!  the  rest,  the  last  object  in  the  sight  of 
a  member  of  this  Church,  the  ultimate  tribunal  to  which  he  can  appeal — 
beyond  it  he  knows  no  appeal — the  General  Assembly;  which  is  just  as 
supreme  in  ecclesiastical  matters,  as  this  honourable  court  in  civil  affairs — 
the  highest  tribunal  of  the  Commonwealth  of  Pennsylvania.  As  for 
judicial  decisions  no  citizen  looks  beyond  this  court,  so  the  Presbyterian 


MR.  SERGEANTS  ARGUMENT.  53  J 

looks  to  no  higher  authority  than  the  General  Assembly.  There  his  sight 
fails:  he  discovers  no  object  beyond.  In  this  body  the  whole  Church  is 
represented,  and  all  the  power  of  the  Church  collected  and  concentrated. 
I  call  upon  the  court  to  say,  is  there  any  thing  witiiin  the  whole  circle  of 
this  jurisdiction  with  which  you  would  deem  it  right  to  interfere?  First, 
there  is  the  church  session.  Suppose  they  exclude  a  communicant  on 
grounds  satisfactory  to  themselves;  or  suppose  that  the  Presbytery  refuses 
to  receive  a  clergyman,  or  turns  him  out;  or  the  same  thing  in  the  ease  of  a 
Synod:  will  you  in  all  cases  where  a  church  judicatory  excludes  any  one 
issue  a  mandatiius  to  restore  him  to  his  place?  Will  you  not  rather  say, 
you  must  appeal  to  the  Presbytery,  to  the  Synod,  or  to  the  General 
Assembly?  But  the  General  Assembly  has  done  me  wrong,  and  there  is 
no  resort  beyond!  What  then?  This  is  a  matter  merely  spiritual,  and 
the  court  cannot  entertain  an  appeal  from  one  ecclesiastical  body  or 
council  more  than  from  another.  But  they  have  excluded  me,  and  have 
not  proceeded  according  to  the  form  prescribed  in  their  constitution. 
What  is  this  to  the  civil  tribunal?  They  are  accountable  for  the  manner 
in  which  they  exercise  their  spiritual  power,  but  not  to  this  court.  Unless 
the  court  say  that  they  may  decide  an  appeal  from  a  church  session,  from  a 
Presbytery,  or  a  Synod;  unless  they  preside  over  the  affairs  of  the  whole 
Church,  they  cannot  exercise  such  a  jurisdiction  in  any  case. 

But  here  is  a  terrible  grievance.  Five  hundred  churches,  and  as  many 
ministers,  and  sixty  thousand  communicants — I  find  only  fifty  thousand 
and  some  odd — have  been  excluded,  wantonly  cut  off!  There  is  much 
more  to  be  dreaded  from  the  oppression  of  a  single  individual,  than  of 
such  a  body  of  men.  What!  five  hundred  ministers  and  as  many  con- 
gregations, comprising  sixty  thousand  communicants— these  men,  in  a 
free  country,  and  afraid  of  persecution !  I  am  afraid  they  are  not  of  the  old 
Presbyterian  stock,  or  they  would  have  no  such  fear.  They  have  always 
been  a  hardy,  resolute  race.  If  Presbyterians  have  been  charged  with 
being  sour;  if  a  doggerel  verse,  written  by  one  who  ought  not  to  have  so 
written,  has  sent  them  in  that  character  flowing  down  in  a  liquid  line, 
certainly  they  have  always  been  found  on  the  side  of  liberty  ancl  inde- 
pendence. These  five  hundred  ministers  and  congregations,  cut  off  and 
oppressed!  Instead  of  allowing  them  to  enlist  our  sympathies,  we  should 
say  to  them,  "  You  are  strong  enough  to  take  care  of  yourselves — stronger 
than  was  the  whole  Presbyterian  Church  wlien  the  General  Assembly 
was  first  formed."'  Fifty  tiiousand  strong  in  the  four  Synods  of  Utica, 
Geneva,  Genesee,  and  the  Western  Reserve,  surrounded  by  neighbours, 
friends,  and  associates — by  whom  and  in  what  manner  have  they  been 
oppressed?  We  say  to  them,  "  Go  in  peace.  If  any  of  you  desire  to 
come  back  to  us  you  are  entitled  to  do  so.  Come  out  from  among  your 
Congregational  brethren,  that  it  may  be  known  whether  you  are  Presby- 
terians, and  if  such,  you  shall  be  received.''  It  is  ridiculous  to  talk  of 
persecution  in  such  a  case. 

These  bodies  wc  have  been  speaking  of,  thus  formed  and  constituted, 
are  a  law  unto  themselves.  They  owe  no  submission  to  any  other  tribu- 
nal. Is  it  lawful,  is  it  consistent  with  spiritual  liberty,  that  the  Church 
should  be  carried  out  of  its  own  sphere,  before  a  tribunal  where  prevails  a 
law  that  is  not  applicable  to  it;  and  this  when  the  Constitution  forbids  the 
civil  authority  to  interfere  in  any  manner  with  the  rights  of  conscience? 


532  PRESBYTERIAN  CHURCH  CASE. 

Talk  of  a  violation  of  the  constitution  of  the  Church!  What  greater 
violation  of  it,  in  its  essence,  its  life,  its  soul,  can  there  be,  than  dragging 
it  before  a  tribunal  entirely  alien,  here  to  compel  its  members  to  prove 
facts,  and  to  justify  their  own  judgment  upon  those  facts.  Demand  of 
any  Presbyterian  that  he  point  out  the  place  where  he  finds  authority  for 
this  proceeding.  Where  does  he  find  the  liberty  given  to  refuse  to  sub- 
mit to  the  judicatories  of  the  Church,  and  to  refer  his  dispute  to  other 
tribunals?  And  how  does  he  find  that  this  is  to  be  done?  Is  his  appeal 
to  be  entertained  thus — not  by  calling  upon  us  to  show  our  minutes,  and 
prove  that  the  question  has  already  been  decided  by  the  Church,  but 
without  crediting  our  statements,  putting  no  confidence  in  our  sincerity, 
by  summoning  us,  as  if  already  convicted  of  an  atrocious  crime,  to  justify 
ourselves,  or  else  suffer  the  penalty  of  being  hunted  down,  as  we  have 
been?  Where  in  the  Presbyterian  constitution  will  you  find  this?  There 
is  no  such  thing. 

We  are  next  to  inquire  into  the  nature  of  the  act  which  has  been  done. 
The  question  here,  is  only  as  to  the  Church:  the  civil  rights  of  the  parties, 
involve  a  different  question.  For  the  present,  I  inquire  only,  are  the  reso- 
lutions of  1837  within  the  limits  stated — the  limits  of  moral  and  spiritual 
discipline?  If  they  are,  can  any  sanction  be  applied  to  them,  which  is  not 
within  the  same  limits  ?  Wliat  is  spiritual  censure  ?  Of  what  consequence 
can  it  be  to  us,  so  long  as  it  is  spiritual,  in  what  manner  it  is  pronounced? 
That  is  not  a  question  that  belongs  to  this  tribunal.  What  was  the  nature 
of  the  power  exercised  in  the  present  case?  It  was  spiritual — purely  so. 
Can  that  body  which  met  in  the  church  in  Ranstead  Court,  justify  their 
proceedings  to  this  honourable  court?  I  don't  know  whether  they  can 
or  not.  I  do  not  see  how  they  are  to  justify  themselves  before  any  such 
tribunal.  I  mean  to  say,  that  in  any  case  it  is  impossible  that  they  should, 
unless  they  can  present  to  your  Honours  their  own  views,  impart  to  you 
their  habits  of  thought,  and  their  feelings;  unless  your  consciences  have 
been  subjected  to  the  same  training  as  theirs:  all  these  are  of  great  import- 
ance for  the  discovery  of  the  truth.  Where  shall  we  find  a  proper  tribu- 
nal? Shall  the  state  erect  such  an  one?  The  Constitution  forbids  it. 
Shall  the  Church  ?  If  the  Church  establish  a  tribunal  above  the  General 
Assembly,  we  must  submit  to  its  decision;  but  that  we  should  be  drawn 
into  other  tribunals,  those  to  which  we  are  not  accustomed — the  civil 
courts — is  forbidden,  lest  they  should  imbibe  too  much  of  the  spirit  of 
any  one  sect.  They  are  to  recognise  no  sect,  except  so  far  as  to  believe 
them  all  sincere.  I  do  not  know  how  to  justify  the  Assembly.  Indeed, 
though  accustomed  to  the  duties  of  an  advocate,  I  here  enter  upon  a  new 
field  of  duty.  Such  matters  ought  not  to  be  entrusted  to  us,  who,  except 
as  individuals,  each  bound  to  take  care  of  himself,  though  too  apt  in  the 
noise  and  bustle  of  the  world,  to  neglect  spiritual  concerns,  cannot  be 
expected  to  understand  the  laws  of  the  Church.  We  are  unfit  for  the  duty ; 
and  this  is  an  additional  argument,  why  your  Honours  should  not  take 
cognizance  of  appeals  from  an  ecclesiastical  court. 

What  is  the  head  and  front  of  our  offending?  We  have  separated  four 
Synods  from  their  connexion  with  the  Presbyterian  Church.  And  what 
do  you  know  about  these  four  Synods,  showing  whether  they  are  regu- 
larly constituted  or  not?  Mr.  Randall  has  gone  over  the  Minutes,  to 
prove  that  the  Assembly  did  this,  and  did  that,  and  finally  has  refused  to 


MR.  SERGEANT'S  ARGUMENT.  533 

let  these  Synods  remain  in  the  Church.  This,  if  it  proved  any  thing, 
would  only  go  to  prove  that  there  is  no  law  to  govern  them;  and  it  fol- 
lows from  hence,  that  there  can  be  no  appeal  brought  from  tlieir  deci- 
sions. Well,  but  the  Charleston  Presbytery  has  Congregational  churches 
within  its  limits.  How  does  he  know  this?  His  Honour  refused  to  admit 
testimony  on  that  point.  The  Assembly  has  brought  in  the  Associate 
Reformed  Church,  and  Mr.  Randall  says  that  they  are  not  Presbj-terians. 
I  say  that  they  are:  if  they  were  brought  in,  they  are  Presbyterians. 
Another  instance  is  mentioned,  of  like  liberality:  again,  we  challenge  the 
learned  counsel,  how  does  he  know  it?  Here  they  offer  a  little  evidence, 
and  there  a  little,  and  pouring  in  a  flood  of  words  about  the  monstrous 
enormities  we  have  practised,  crave  the  peculiar  interposition  of  the  court. 
•But  how,  from  these  scattered  fragments  that  are  thrown  in — how,  from 
various  instances  of  alleged  irregularity  and  inconsistency,  can  a  correct 
judgment  be  formed;  especially,  when  little  matters  are  presented  for 
your  consideration,  which  are  not  in  evidence?  There  is  one  such,  that 
has  been  offered,  in  regard  to  which  I  may  say,  that  beside  its  not  being 
in  evidence,  I  believe  that  Mr.  Randall  will  find  his  statement  respecting 
it  incorrect.  The  Assembly  has  been  charged  with  enormous  sums 
received  from  the  four  Synods,  which,  it  is  said,  have  not  been  repaid. 

M7\  Randall — Here,  in  the  statistical  table,  is  a  receipt  for  the  sums 
mentioned. 

Mr.  Sergeant — I  believe  you  will  faid  that  in  1837  they  took  out  eighty 
dollars  more  than  they  brought  in. 

Mr.  Randall — All  that  we  have  in  evidence  is  here  in  the  statistical 
table. 

Mr.  Sergeant — Well,  may  it  please  your  Honours,  I  will  undertake 
personally  to  promise,  instead  of  going  into  a  needless  examination  of  this 
matter,  that  if  they  have  not  taken  out  as  much  as  they  brought  in,  they 
may  have  the  difference  whenever  they  choose  to  call  for  it.  Here  is  a 
specimen  of  the  condition  into  which  the  Assembly  is  brought  by  this 
discussion — the  evidence  of  what  sort  of  charges  we  are  to  vindicate  it 
from. 

I  say  that  when  the  four  Synods  were  disconnected,  immediately  their 
whole  power  ceased.  Who  can  complain  that  four  Synods  are  separated 
from  a  voluntary  association?  Even  without  any  reason,  the  Assembly 
had  a  right  to  separate  them,  just  as  the  Synods  had  a  right  to  secede  at 
pleasure.  Whether  they  shall  submit  is  not  a  question  to  be  entertained 
here.  I  mean  to  contend  for  that  doctrine  to  its  whole  extent;  that  it  is  not 
for  this  tribunal  to  look  into  the  constitution  of  the  Church  and  decide 
whether  they  have  been  rightfully  excluded  ;  that  the  question  who  is  of 
the  Church  belongs  exclusively  to  the  Church  to  determine;  and  that  when 
it  has  decided,  the  judgment  is  final.  There  was  a  time  when  the  great 
mass  of  the  property  of  the  Methodist  Church  was  held  in  trust;  and 
according  to  the  terms  of  the  deeds,  no  one  could  be  a  trustee  who  was 
not  a  member  of  the  Church.  The  trust,  therefore,  was  incidentally  sub- 
ject to  the  power  of  the  Church,  for  if  a  man  were  cut  off  from  member- 
ship, he  would  cease  to  be  a  trustee.  Now  suppose  the  question  to  arise, 
whether  a  certain  person  was  or  was  not  entitled  to  the  trust.  This 
might  depend  upon  various  things;  but  suppose  among  other  points  a 
question  should  be  raised  whether  the  trustee  was  a  member  of  the  Church 


534  PRESBYTERIAN  CilURCII  CASE. 

or  not.  Suppose  he  had  been  cut  off  from  the  spiritual  flock.  No  doubt 
the  court  would  have  a  right  to  decide  whether  he  was  a  rightful  trustee, 
but  would  they  allow  an  appeai  from  the  previous  decision  of  the  Church; 
would  they  interfere  with  the  functions  of  church  government?  Certainly 
not.  They  would  not  invade  the  spiritual  dominion  by  enquiring  whether 
he  was  rightfully  cut  off.  So  here,  the  court  has  an  undoubted  right  to 
look  into  the  question  whether  the  defendants  are  or  are  not  trustees;  but 
cannot  go  back  to  the  Assemby  of  1837,  and  look  into  acts  purely  spi- 
ritual; and  when  that  body  has  decided  that  certain  persons  do  not  belong 
to  the  church,  decree  that  they  do  belong.  TJiat  is  a  question  for  the 
Assembly:  1  contend  that  jurisdiction  over  this  subject-matter  belongs 
exclusively  to  the  Church.  Corporation  or  no  corporation,  trustees  or  no 
trustees,  when  it  is  asked  whether  certain  persons  are  connected  with  the 
Church,  the  only  question  for  the  court  to  propomid  is,  how  have  the 
judicatories  of  the  Church  decided  ?  I  may  remark  here,  that  Judge 
Rogers  admits  this  exclusive  jurisdiction  to  have  belonged  originally  to 
the  Church;  but  he  seems  to  suppose  that  the  court  has  now  a  right  to 
interfere,  because  we  have  to  do  with  a  corporation,  or  with  trustees. 
But  I  contend  that  the  court  now  has  no  more  right  in  this  matter  than 
it  had  before;  and  that  whenever  the  question  arises,  who  belongs  to  the 
Church?  you  must  still  go  to  the  Church  for  its  decision.  And  that 
decision  must  necessarily  be  final  and  conclusive  of  the  question.  It 
may  happen  to  be  combined  with  other  questions  properly  of  civil  cog- 
nizance, but  it  will  not  on  that  account  be  the  less  a  question  exclusively 
of  Church  jurisdiction.  The  other  questions  may  be  decided  by  the 
court  upon  their  appropriate  grounds,  this  can  be  decided  only  by  re- 
ference to  the  Church.  If  a  man  be  in  full  communion,  with  the  assent  of 
the  Church,  he  must  be  deemed  to  be  a  member.  If  he  be  excluded,  he 
must  be  deemed  not  to  be  a  member.  So  is  it  also  of  Synods  and  Pres- 
byteries. Wherever,  and  whenever  the  question  arises,  it  must  be  so 
disposed  of,  and  whatever  depends  upon  it  must  follow  that  decision. 
The  body  is  the  same  as  it  was  before  the  act  of  1799  was  passed,  (which 
acknowledged  it  as  an  existing  body) — its  jurisdiction  in  spiritual  matters 
is  the  same— tlie  authority  of  its  decisions  is  the  same — and  if  a  question 
arise  about  trustees,  itself  depending  upon  a  question  properly  of  Church 
cognizance,  the  decision  by  the  Church  of  the  latter,  must  necessarily  be 
conclusive.  Else,  the  boundary  between  spiritual  and  temporal  juiisdic- 
tion  would  be  entirely  destroyed,  and  the  righful  province  of  the  spiritual 
authority,  be  invaded  by  the  civil  power,  to  the  utter  overthrow  of  re- 
ligious freedom. 

Within  a  day  or  two  past  I  have  received  the  manuscript  notes  of 
Chief  Justice  Johns,  of  a  case  formerly  decided  by  the  Supreme  Court  of 
Delaware. 

Mr.  Randall.     We  object  to  the  introduction  of  this  new  matter. 

Mr.  Sergeant.      The  counsel  on  the  opposite  side  may  reply. 

Mr.  Randall.  But  the  court  has  already  been  jaded  by  the  length  of 
the  case. 

C.  J.  Gibson.     Oh,  we  are  quite  fresh  yet. 

Mr.  Randall.  Then  your  Honours  have  very  little  of  the  infirmity 
of  human  nature. 

Mr.  Sergeant.     These  notes  were  put  into  my  hand  several  days  ago, 


MR.  SERGEANTS  ARGUMENT.  535 

but  I  had  not  time  to  look  at  them  immediately  and  arrange  them.  Here 
are  the  notes  of  the  argument,  and  of  the  opinion,  with  a  copy  of  the 
affidavit  filed,  bearing  date  the  6th  of  November,  1812.  So  much  it  has 
seemed  necessary  tq  say  in  explanation:  I  will  now  either  read  a  part  of 
the  case,  or  hand  the  mnnuscript  to  your  Honours. 

Air.  Randall.  If  it  is  the  case  of  a  pastor  claiming  to  be  restored  to 
his  pulpit,  we  have  no  objection  to  its  being  read. 

Mr.  Sergea/il.  It  is  not  that:  it  was  an  application  to  be  restored  to 
the  Presbytery.     I  will  read  the  affidavit. 

*•'  In  the  Supreme  Court  of  the  State  of  Delaware,  held  at  New  Castle, 
for  the  county  of  New  Castle,  of  the  November  Term,  A.  D.    1812. 

"New  Castle  countj,  ss. 

"  Francis  Hindman  being  duly  sworn  in  open  court,  does  depose  and 
say,  that  on  the  first  day  of  May  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  eight,  he  was  a  memb:  r  of  '  The  New  Castle  Presby- 
tery' in  full  standing,  and  as  such  member  duly  admitted  and  received 
by  them,  entitled  to  all  the  rights,  franchises,  privileges  and  immunities 
of  a  member  of  the  said  New  Castle  Presbytery  in  full  standing.  And 
he  further  deposes  and  says,  that  on  the  same  day  and  year  aforesaid,  he 
was  a  regular  minister,  duly  ordained  to  preach  the  Holy  Gospel,  and  to 
administer  all  its  ordinances,  according  to  the  Rites  and  Ceremonies  of 
the  Presbyterian  Church  of  the  United  Slates  of  America,  received  and 
admitted  by  the  said  New  Castle  Presbytery,  and  was  in  the  regular 
exercise  of  his  ministerial  functions, and  entitled  to  all  the  rights,  franchises, 
perquisites,  privileges  and  immunities  of  a  regular  Minister  of  the  Pres- 
byterian Church  aforesaid.  And  he  further  deposes  and  says,  that  as  a 
member  of  the  said  Presbytery,  and  a  minister  of  the  said  Presbyterian 
Church  under  their  jurisdiction,  duly  received  and  accredited  by  them, 
he  has  well  and  honestly  behaved  himself,  and  at  all  times  and  on  all 
occasions  performed  the  duties  appertaining  to  the  said  situations  re- 
spectively. Nevertheless,  the  said  New  Castle  Presbytery  proceeding 
on  a  vague,  uncertain  and  unfounded  accusation,  contrary  to  their  own 
rules  and  in  violation  of  every  principle  of  justice  in  the  absence  of  this 
deponent,  did  depose  him  from  the  said  New  Castle  Presbytery,  and  also 
deposed  him  from  the  office  of  minister  of  the  Presbyterian  Church  afore- 
said, and  divested  him  of  all  his  ministerial  functions,  without  any  just  or 
legal  grounds,  to  the  serious  injury  and  great  damage  of  this  deponent. 
"  Sworn  and  subscribed  in  open  ^  (Signed) 

Court,  November  6,  1812.    3  Francis  Hindman. 

"  Attest,  Daniel  Blaney,  Clk.  Sup.  Ct. 

Mr.  Sergeant.  Here  you  see  there  were  not  fifty  thousand  disfran- 
chised— only  one. 

C.  J.  Gibson.    Was  the  Church  incorporated? 

Mr.  Serjeant.  The  Presbytery  was  incorported,  as  appears  from  the 
argument  of  Mr.  Rodney. 

C.  J.  Gibson.  It  certainly  must  have  been:  else  the  court  would  not 
have  taken  cognizance  of  the  application. 

Mr.  Sergeant.     His  Honour  Judge  Rogers  I  presume,  has  a  copy  of 


536  PRESBYTERIAN  CHURCH   CASE. 

the  laws  of  Delaware.  The  act  of  incorporation  was  passed  the  Sd  of 
February,  1808.  Here  is  what  has  been  handed  to  me  as  a  draft  of  the 
opinion  of  Chief  Justice  Johns.  In  the  course  of  the  opinion  he  examines 
the  affidavit,  and  says  that  it  is  not  sufficient,  in  that  while  it  declares  the 
removal  to  have  been  determined  in  the  absence  of  the  deponent,  it  does 
not  negative  the  fact  that  he  had  due  notice  and  might  have  been  present, 
as  well  as  for  other  reasons.  Then  he  comes  to  the  general  grounds 
which  are  discussed  without  reference  to  the  sufficiency  of  the  affidavit. 
The  Chief  Justice  says, 

"  This  is  an  application  for  a  MandamKS  to  the  New  Castle  Presby- 
tery to  restore  Francis  Ilindman,  1st  to  his  clerical  office  of  a  Preacher 
or  Minister  of  the  Presbyterian  Church;  and  2dly  to  his  Membership  of 
the  civil  New  Castle  Presbytery,  on  grounds  contained  in  the  applicant's 
affidavit,  which  it  is  contended  shows  an  amotion  or  removal  from  both 
offices." 


"  But  supposing  the  affidavit  not  to  be  defective,  and  that  we  are  to 
consider  this  to  be  a  case  of  removal  from  the  clerical  office  by  the  deci- 
sion of  an  ecclesiasticol  tribunal  having  competent  jurisdiction,  but  that 
it  is  an  erroneous  decision;  then  the  question  occurs — Is  it  conclusive,  or 
can  a  civil  tribunal  interpose,  review,  and  correct  the  error;  and  have  we 
the  power  to  controul  the  ecclesiastical  tribunal  and  enforce  obedience  to 
our  orders? 

"  These  are  important  questions  which  touch  the  freedom  of  religious 
worship — It  perhaps  may  not  be  Holy  Ground,  but  it  appears  to  be 
Constitutional  Ground. 

"  The  first  section  of  the  first  article  of  the  Constitution  of  Delaware 
provides,  that  '  no  jjower  shall  or  ought  to  be  vested  in  or  assumed 
by  any  magistrate,  that  shall  hi  any  case  interfere  with,  or  in  any  man- 
ner controul  the  rights  of  conscience,  in  the  /ree  exercise  of  religious 
worship.' — Your  Honours  perceive  that  it  is  not  so  strong  as  the  provi- 
sion made  in  our  own  Constitution. — '  Courts  are  not  to  assume  such 
power  as  may  have  this  effect.  This  provision  we  are  of  opinion  does 
secure  to  every  sect  of  religion  the  exclusive  right  of  exercising  religious 
worship  according  to  their  will  and  pleasure,  uncontrouled  by  civil 
authorit3^  Who  shall  be  authorized  to  preach  is  a  matter  proper  to  be 
regulated  only  by  the  religious  society,  and  essentially  concerns  the 
right  of  freedom  in  the  exercise  of  religious  w^orship  which  was  designed 
to  be  secured  by  the  Constitution.  To  interpose  the  power  of  this  court 
in  the  present  case,  we  consider  would  be  to  assume  the  power  which 
the  Constitution  forbids.  The  policy  of  our  government  and  laws  is  not 
to  blend  the  Church  and  State,  but  to  keep  them  as  separate  and  distinct, 
as  may  be  consistent  with  the  protection  of  religious  rights  ;  and  we  be- 
lieve this  to  be  sound  policy.  Once  permit  tlie  civil  authority  to  inter- 
fere with  religion,  particularly  with  the  ordination  and  expulsion  of 
ministers,  and  you  create  a  powerful  engine  which  may  be  used  to 
introduce  an  established  religion.  Further  it  may  produce  discord,  en- 
courage faction,  and  destroy  that  harmony  without  which  it  is  not  to  be 
expected  religion  can  flourish,  as  it  would  if  left  to  regulate  itself. 


MR.  SERGEANT'S  ARGUMENT. 


537 


"  We,  therefore,  are  of  opinion  that  as  to  the  clerical  office  this  court 
has  no  power  to  interfere."* 

Now,  the  principle  of  this  decision  applies  equally  here.  The  ques- 
tion before  you,  is  one  with  which  you  have  no  power  to  deal.     Where 

*As  no  report  of  this  case— TAe  State  of  Delmcare  v.  The  New  Castle  Presbytery— 
appears  to  have  been  published,  we  shall  here  lay  before  the  reader,  what  will  no  doubt 
prove  very  acceptable,  the  whole  of  the  opinion  of  the  court.  The  affidavit  filed,  has  been 
already  given  at  length.  Upon  this  suggestion,  after  some  argument,  a  rule  to  show  cause 
why  a  mandamus  should  not  issue,  was  granted;  and  notice  thereof,  in  form  as  follows, 
served  upon  the  Presbytery: 

"The  State  of  Delaware  1    „  ,.  ■,.„•■,. 

y  r    Suggestion  and  Ajfidavit 

The  New  Castie  Presbytery.       S  for  a  UxnnKuv^. 

"  And  now,  to  wit,  this  eleventh  day  of  November,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twelve,  on  suggestion  and  affidavit  filed,  and  on  motion  of  counsel  for 
Francis  Ilindman,  in  open  Court:  It  is  ordered  by  the  Court,  that  the  first  Saturday  of  next 
term  be  given  to  the  New  Castle  Presbytery,  to  show  cause  why  a  Mandamus  should  not 
issue,  directed  to  them,  requiring  them  to  restore  the  said  Francis  Hindman  as  a  member 
of  the  said  civil  New  Castle  Presbytery,  and  to  his  rights,  privileges,  franchises,  perquisites, 
and  the  exercise  of  his  clerical  functions,  as  a  minister  of  the  Presbyterian  Church  of  the 
United  States  of  America,  duly  ordained  to  preach  the  Holy  Gospel,  and  to  administer  all 
its  ordinances,  according  to  the  rites  and  ceremonies  of  the  said  Presbyterian  Church. 

"  And  it  is  further  ordered,  that  notice  of  this  rule  be  given  to  the  President  and  Secre- 
tary of  the  New  Castle  Presbytery." 

In  April,  1814,  the  case  appears  to  have  been  continued  by  consent;  and  afterwards,  it 
was  again  continued  until  April,  1815,  when  it  was  fiilly  argued  by  Mr.  K.  Johns,  jr.  and 
Mr.  G.  Rodney,  for  the  plaintiff;  and  by  Mr.  McLane,  Mr.  Broom,  and  Mr.  Van  Dyke,  for 
the  Presbytery.  After  time  had  to  consider  the  application,  the  opinion  of  the  Court  was 
delivered,  April,  1815,  by 

"  Kensey  Johns,  C.  J.  This  is  an  application  for  a  Mandamus,  to  restore  Francis  Hind- 
man,  1st,  to  his  clerical  office  of  a  preacher  or  minister  of  the  Presbyterian  Church;  and, 
2dly,  to  his  membership  of  the  civil  New  Castle  Presbytery,  on  grounds  mentioned  in  the 
applicant's  affidavit,  which,  it  is  contended,  shows  an  amotion  or  removal  from  both  offices. 
A  variety  of  rules  or  principles,  have  been  submitted,  on  both  sides,  as  applicable  to,  and 
governing  this  case.  All  embarrassment  or  difficulty  as  to  the  bearing  of  those  rules  will 
vanish,  upon  a  due  consideration  of  the  grounds  of  this  application,  which  presents  to  view 
two  distinct  and  different  cases,  governed  by  different  rules.  It  may  be,  that  some  of  the 
rules  may  apply  to  each  case;  but  it  is  clear,  many  of  them  cannot  apply  to  both.  There- 
fore, to  avoid  embarrassment  and  difficulty,  the  two  cases  ought  to  be  separately  considered. 

"  The  first  case  is  an  application  for  a  Mandamus,  to  restore  an  expelled  minister  of  the 
Gospel  to  his  clerical  functions. 

"  The  second  is  to  restore  him  to  a  right  of  membership  in  the  civil  New  Castle  Presbytery. 

"  Before  we  consider  the  rules  particularly  applicable  to  either  of  the  cases,  we  shall 
notice  some  of  the  general  rules  and  principles,  for  regulating  the  use  of  the  remedial  writ, 
called  a  Mandamus. 

"  1st.  1  Vol.  D.  L.  (Delaware  Laws,)  376.  It  is  said,  this  act  gives  the  Supreme  Court 
the  same  powers  as  the  King's  Bench  in  England  has.  It  does  so;  and  the  court  have  such 
power,  except  so  far  as  the  exercise  of  this  power  has  been  altered  or  restrained  by  subse- 
quent laws,  or  the  Constitution  of  the  United  States,  or  the  State  of  Delaware. 

"  2dly.  It  is  contended,  that  in  England,  the  Mandamus  is  founded  on  Magna  Charta, 
and  in  Delaware,  on  the  seventh  section  of  the  first  article  of  the  Constitution,  which  pro- 
vides, that  no  person  shall  be  deprived  of  life,  liberty,  or  property,  unless  by  the  judgment 
of  his  peers,  or  the  law  of  the  land;  and  that  the  Court  of  King's  Bench  and  this  court, 
have  the  power  to  issue  this  writ,  and  are  bound  to  issue  it,  to  restore  an  officer  to  his  office, 
where  there  is  a  rirrht  and  no  other  specified  remedy,  without  regard  to  the  nature  of  the 
office,  if  it  draws  after  it  temporal  rights;  and  that  the  value  of  the  matter,  or  the  degree 
of  importance  to  the  public  police,  is  not  to  be  scrupulously  weighed,  but  that  this  court 
ought  liberally  to  interpose  for  the  advancement  of  justice.  On  the  other  side,  the  general 
doctrine  is  not  denied,  but  'tis  contended,  that  the  general  rules  do  not  apply  to  spiritual 
offices,  and  that  there  are  other  exceptions. 

"  We  consider  the  writ  of  Mandamus  to  be  a  writ  of  right,  (3  Burr,  Rep.  1267,)  to  the 
■id  of  which,  every  citizen  is  entitled,  upon  a  proper  case  previously  shown,  to  the  satisfac- 

68 


538  PRESBYTERIAN  CHURCH  CASE. 

mere  civil  rights  are  concerned,  courts  may  interfere ;  but  it  does  not 
belong  to  them  to  interpose  their  authority  in  matters  merely  spiritual,  to 
decide  spiritual  questions.  I  feel  greatly  fortified  by  the  opinion  of  the 
Supreme  Court  of  Delaware,  in  the  position  for  which  I  am  contending. 

tion  of  the  court;  and  it  ought  to  be  used,  where  the  law  has  established  no  specific  remedy, 
and  where,  in  justice  and  good  government,  there  ought  to  be  one ;  and  if  there  be  a  right 
and  no  other  specific  remedy,  it  ought  not  to  be  denied.  How  this  law  applies  to  either  of 
the  cases,  shall  be  considered  ;  but  first  let  us  notice, 

"  3dly.  That  it  is  contended,  that  in  the  present  stage  of  this  business  the  court  ought  not 
to  arrest  the  case  by  refusing  to  grant  the  writ,  if  there  is  probable  cause  shown,  and  that 
this  is  to  be  judged  of  from  the  affidavit  alone ;  and,  farther,  that  if  doubtful  'tis  sufficient- 
In  opposition  'tis  said  this  case  depends  on  a  question  of  jurisdiction,  and  the  court  ought 
not  to  exercise  the  power  if  doubtful. 

"  Exclude  the  question  of  jurisdiction,  and  the  law  is  not  to  arrest  the  case  in  its  present 
stage,  if  proper  ground  appears  from  the  affidavit;  as  if  there  be  a  claim  of  right,  though  it  is 
litigated,  it  may  be  sufficient,  according  to  the  case  in  2  Burr.  Rep,  1045.  But  then  the 
court  are  not  to  be  prevented  from  the  consideration  of  the  nature  of  the  affidavit,  and 
examining  any  matter  to  which  the  affidavit  refers.  And  if  the  case  turns  oii.a  question  of 
jurisdiction,  probable  ground  will  not  do;  for  we  must  believe  that  this  court  have  the 
power  to  hear,  try,  and  decide  this  case,  before  we  can  with  propriety  take  cognizance  of  it; 
because  it  would  be  idle — nay,  it  would  be,  undoubtedly,  wrong,  for  this  court  to  issue  a 
writ  to  bring  a  case  into  court,  have  a  trial  by  jury,  and  afterwards  dismiss  it  for  want  of 
jurisdiction. 

"  If  we  have  not  competent  authority  to  apply  the  specific  remedy,  i.  e,  to  restore  to  this- 
clerical  office,  and  our  order  would  be  nugatory,  as  the  counsel  for  the  Presbytery  insist,  if 
appears  to  us  that  this  court  ouglit  not  to  inquire  into  the  merits  of  the  case,  nor  make  a 
nugatory  order  to  restore ;  and  we  were  not  a  little  surprised  at  the  reply  to  this  objection, 
and  to  hear  it  expressly  avowed,  that  the  great  object  of  this  proceeding  is,  to  afltbrd  Mr. 
Hindman  an  opportunity  of  compelling  his  accusers  to  come  into  this  court,  and  by  legal 
proof  to  substantiate  the  charges  on  the  ground  of  which  he  was  removed,  and  that  this 
court  might  examine  the  causes  of  his  amotion  and  decide  on  their  sufficiency. 

"  4thly.  The  supremacy  of  the  law  is  relied  on  as  an  answer  to  the  objection  founded  on 
the  nature  of  spiritual  and  temporal  tribunals  in  America,  which  it  was  contended  stand  on 
different  grounds  than  those  tribunals  do  in  Great  Britain.  True,  it  was  said,  the  Presby- 
tery, Synod,  and  General  Assembly,  derive  their  authority  by  consent  from  the  people 
possessing  the  Presbyterian  religion,  and  not  from  any  civil  power.  This  we  know  to  be 
true.  And  it  was  argued,  that  from  the  policy  of  our  government  and  laws,  those  tribunals 
were  separate  and  distinct ;  so  that  as  to  spiritual  matters,  comprehending  the  cases  of 
ordination  and  expulsion,  the  ecclesiastical  tribunal  possessed  exclusive  jurisdiction;  and 
that  the  civil  tribunals  could  not  interfere  without  violating  the  principles  of  the  Constitu- 
tion of  the  State  of  Delaware.  But  'tis  said  religious  institutions  cannot  control  the  civil 
authority,  but  must  be  amenable ;  that  the  civil  authority  is  the  only  refuge  and  security 
against  persecution.  Farther,  'tis  the  protection  even  for  our  religious  rights,  and  must 
be  supreme ;  and  the  exclusive  jurisdiction  of  the  ecclesiastical  tribunal,  even  in  spiritual 
matters,  is  denied. 

"  The  power  of  the  civil  authority  to  redress  wrongs  and  to  protect  our  rights,  both  civil 
and  religious,  cannot  be  denied  ;  and  if  persons  composing  religious  institutions  do  acts 
which  violate  our  civil  rights,  no  person  doubts  their  amenability.  And  if  they  exercise 
the  power  of  expelling  a  preacher,  then  the  questions  are,  do  these  acts  invade  any  civil 
rights  ?  Is  there  any  law  of  the  land  which  vests  a  right  in  Francis  Hindman  to  have  and 
to  hold  the  office  of  a  preacher,  or  forbids  his  expulsion  ?  Is  there  any  rule  even  of  the 
society  which  recognises  the  right  after  expulsion  ?  And  is  not  the  power  of  judging  its 
own  members  and  officers  an  inherent  power,  necessarily  vested  in  the  tribunal  constituted 
by  the  society  ?  And  ought  not  these  tribunals  have  exclusive  jurisdiction  as  to  ordination 
and  expulsion  ?  Where  then  is  the  right  which  is  invaded  ?  C;ertainly,  the  existence  of  a 
right  now  to  leave  the  office,  must  appear,  before  it  can  be  said  any  right  is  violated,  for 
which  redress  is  to  be  obtained  by  the  operating  power  of  this  supreme  civil  authority. 

"  We  shall  now  consider  the  two  cases  comprehended  in  the  present  application  for  a 
Mandamus. 

"  The  first  is,  to  restore  an  expelled  minister  to  his  office  of  minister.  Now  let  us 
examine  the  facts.  First,  the  affidavit  is  to  be  taken  according  to  its  necessary  import. 
Whatever  is  therein  referred  to  must  also  be  looked  at,  in  order  to  understand  the  case. 
The  affidavit  of  the  applicant  is  in  the  following  words:" — Vid.  Ante,  p.  535. 


MR.  SERGEANT'S  ARGUMENT.  539 

If  there  exist  any  doubt  in  your  Honours'  minds  upon  this  point,  as  I 
trust  there  does  not;  if  you  are  not  prepared  to  go  the  whole  length  of 
the  doctrine  which  I  have  thus  endeavoured  to  illustrate  and  enforce; 
still,  you  must  agree,  that  some  respect  is  due  to  the  acts  of  these  Church 

"This  affidavit  does  show  that  the  removal  by  the  Presbytery  was  in  the  absence  of 
Francis  Hindman;  but  it  does  not  show  that  it  was  a  decision  without  notice,  or  giving 
him  an  opportunity  of  being  heard;  and  in  this  respect  is  defective. 

"■  The  affidavit  docs  show  that  the  amotion  from  the  clerical  office  was  contrary  to  the 
rules  of  the  New  Castle  Presbytery,  at  least  so  far  as  the  belief  of  Mr.  Hindman  proves  it; 
but  it  is  defective  in  not  specitying  what  rule  or  rules,  that  the  court  may  judge,  if  they 
have  the  power  of  judging,  whether  such  a  rule  was  violated,  as  would  substantially  effect 
the  merits  of  the  case. 

'J  he  affidavit,  by  referring  to  the  rites  and  ceremonies  of  the  Presbyterian  Church,  opens 
to  our' view  the  Constitution  of  that  Church,  by  which  we  see  two  appelate  tribunals  pro- 
vided ;  but  it  does  not  show  that  appeals  were  resorted  to.  'Tis  defective  in  this  respect ; 
for  the  removal  is  not  fully  impeached  without  a  final  decision. 

"  Therefore,  if  this  court  have  jurisdiction,  we  are  of  opinion  a  proper  case  is  not  shown 
to  warrant  us  in  issuing  the  Mandimus  to  restore  the  clerical  office." 

Next  comes  the  passage  quoted  by  Mr.  Sergeant.    Ante^  p.  536. 

"  The  law  in  England,  as  to  the  use  of  this  writ  of  Mandamus,  we  have  considered ;  and 
if  that  law  could  govern  us  in  this  case,  we  are  of  opinion,  the  cases  cited  arid  relied  on  by 
the  counsel  for  the  applicant,  do  not  show  that  even  in  England,  the  writ  of  Mandamus 
would  be  used  to  restore  an  expelled  minister  of  the  Gospel.  We  conceive  there  is  a  marked 
distinction  between  those  cases  and  the  present.  The  principal  ground  for  controversy  in 
this  case,  is  the  removal  from  the  clerical  office.  In  the  leading  cases  cited,  the  existence  of 
the  clerical  office  is  not  questioned ;' and  the  inquiry  is  not,  whether  an  expelled  minister 
can  be  restored,  but  admitting  him  to  be  a  minister,  and  as  such  he  claims  or  has  a  right 
to  another  office  in  a  particular  church,  by  virtue  of  some  grant,  or  contract,  or  statutory 
provision,  and  is  ousted  or  deprived  of  it,  such  minister  can  be  admitted  or  restored  to  the 
other  office.  In  those  cases,  no  question  arises  as  to  his  being  a  minister:  the  power  to 
decide,  as  to  the  first  office,  is  not  involved.  The  inquiry  is,  if  being  a  minister,  and  having 
a  right  derived  from  law  to  another  office,  and  he  is  deprived  of  it,  the  court  will  redress 
him  by  Mandamus.  Here,  the  civil  right  to  the  other  office,  is  a  proper  subject  for  civil 
power  to  act  on,  and  a  court  will  give  redress.  We  think  no  such  case  in  this,  has  or  can 
be  shown. 

"Now,  as  to  the  principles  of  the  cases  relied  on.  3  Burr.  Rep.  1267,  may  be  considered 
as  the  principal  case,  and  does  contain  the  general  principles  applicable  to  the  writ  of  Man- 
damus. 1st.  It  is  a  writ  of  right,  in  proper  cases— Admitted.  2dly.  It  ought  to  be  used 
where  the  law  has  established  no  specific  remedy,  and  where  in  juslice  and  good  goverri- 
ment,  there  ought  to  be  one— Admitted;  but  here,  1st,  there  can  be  no  remedy:  2dly,  it 
would  be  subversive  of  frood  government ;  3dly,  if  there  he  a  right  and  no  other  specific 
remedy,  it  ought  not  to  be  denied — Admitted ;  but  then  there  must  be  a  right,  and  this  can 
only  be  understood  to  be  a  legal  right.  Now,  here  is  no  legal  right;  so  tliat  according  to 
the  principles  of  the  ease  in  Burrowes,  this  is  not  a  case  in  which  a  Mandamus  ought  to 
issue ;  for  it  would  be  subversive  of  good  government,  and  no  right  is  invaded,  and  conse- 
quently there  can  be  no  wrong  to  be  redressed. 

"  As  to  the  American  cases,  we  cannot  see  how  they  apply  to  the  present  case.  The  ease 
of  the  State  v.  The  Trustees  of  the  Presbyterian  Church  of  the  city  of  Philadelphia,  was  to 
restore  a  minister  to  the  use  of  the  pulpit,  in  a  certain  churcli.  Here  was  no  question  as 
to  the  preacher's  office,  but  supposes  him  to  be  a  minister;  and  the  question  it  is  to  be  pre- 
sumed was,  whether,  being  a  preacher,  he  had  the  civil  right  of  using  tliat  particular 
church. 

"  1  he  case  cited  by  Mr.  Dallas,  in  Shippen's  Trial,  234,  only  shows  that  the  Mandamus 
is  used  here  as  in  England;  and  there  was  no  question  as  to  the  right  to  tlie  office  of  a  min- 
ister, but  a  dispute  between  two  priests,  who  had  the  civil  rigiit  to  the  Holy  Trinity  Church. 

"  The  New  York  case,"  {Case  of  Rev.  Mr.  Jones,  pastor  of  Trinity  Church— 1812,)  "  does 
not  touch  the  writ  of  Mandamus,  and  seems  to  have  been  a  dispute  about  the  salary  of  a 
minister. 

"2  Binney's  Rep.  441,  was  to  an  incorporated  charitable  institution,  to  restore  an  expelled 
member.  This  expulsion  was  not  in  a  case  where  the  corporation  possessed  inherently  the 
power,  but  depended  on  the  vahdity  of  a  by-law,  wliich  the  court  determined  to  be  void. 
And  farther,  it  is  not  like  the  case  of  expelling  a  minister,  by  a  tribunal  having  competent 
authority  to  try  and  dismiss. 


540  PRESBYTERIAN  CHURCH  CASE. 

judicatories;  that  they  are  at  least  to  be  considered  good,  until  the  con- 
trary has  been  shown.  And  the  burden  of  proving  that  they  are  not 
good  and  valid,  should  of  course  rest  upon  the  opposite  party.  But  here 
this  rule  has  been  reversed:  the  burden  of  proof  has  been  thrown  upon 

"  The  authorities  cited,  to  show  a  variety  of  cases  in  which  this  writ  of  Mandamus  has 
been  denied,  for  reasons  alleged  to  be  applicable  to  this  case,  we  do  not  consider  to  be  neces- 
sary for  us  to  notice. 

"  We  shall  now  consider  the  second  case,  which  is  to  restore  Francis  Hindman,  as  a  mem- 
ber  of  the  civil  New  Castle  Presbytery,  to  his  membership,  on  the  ground  of  a  removal. 

"  We  must  first  ascertain  what  arc  the  facts  of  the  case,'  as  it  now  appears  before  us.  If 
the  word  "  deposed,"  in  the  affidavit,  is  to  be  taken  to  import  a  removal  from  the  civil  New 
Castle  Presbytery,  by  some  act  done  by  that  body,  acting  in  their  corporate  capacity,  then 
the  case  is  different,  in  point  of  fact,  from  the  one  which  has  been  argued  on,  and  perhaps 
does  not  present  the  real  case  which  now  exists. 

"  The  applicant's  counsel,  in  the  argument  of  this  case,  consider  the  amotion  from  mem- 
bership as  consequential,  or  as  the  effect  of  expulsion  from  the  office  of  a  minister;  and  do 
not  pretend  that  acts  were  done  by  the  civil  New  Castle  Presbytery,  in  their  corporate 
capacity,  for  the  purpose  of  removal,  but  contend  that  the  acts  of  the  ecclesiastical  and  civil 
New  Castle  Presbytery  are  not  distinguishable,  and  even  deny  the  legal  existence  of  two 
New  Castle  Presb^-teries.  We  are  of  a  different  opinion.  It  appears  to  us  to  be  manifest, 
that  there  do  legally  exist  two  New  Castle  Presbyteries,  having  and  exercising  distinct  and 
different  powers:  the  one  for  the  government  of  the  Church,  which  is  ecclesiastical,  and 
founded  on  the  consent  of  associated  religious  societies;  the  other  for  the  management  of 
temporal  affairs  pertaining  to  the  Church,  which  is  civil,  and  derived  from  legislative  autho- 
rity, by  the  act  of  incorporation  passed  on  the  3d  of  February,  1808. 

"  1st.  The  right  of  creating  religious  institutions,  without  the  aid  of  civil  power,  is  recog- 
nised by  the  usage  of  our  country. 

'•2dly.  It  is  recognised  by  the  preamble  to  the  Constitution  of  the  State  of  Delaware,  and 
the  first  section  of  the  first  article. 

"3dly.  The  act  for  incorporating  the  members  of  the  New  Castle  Presbytery,  doesrecog. 
nise  the  existence  of  a  New  Castle  Presbytery  at  that  time ;  and  its  subsequent  existence  is 
by  that  act,  made  necessary  to  perpetuate  the  corporation  of  the  New  Castle  Presbytery. 
For  the  first  section  contemplates  that  the  then  and  future  members  of  the  ecclesiastical 
Presbytery,  shall  be  the  members  of  the  civil  Presbytery.  Therefore,  the  ecclesiastical 
Presbytery  must  then  have  existed,  and  it  must  continue  to  exist,  or  there  can  be  no  civil 
Presbytery;  because,  if  it  is  admitted  there  are  no  members  of  that  Presbytery,  there  can 
be  no  person  legally  qualified  to  be  a  member  of  the  incorporated  Presbytery,  and  conse- 
quently the  corporation  must  be  extinct. 

"4thly.  The  counsel  themselves  in  drawing  up  the  rule  to  show  cause  in  this  case,  have 
used  the  word  'civil'  to  designate  tiie  incorporated  Presbytery,  which  would  have  been 
unnecessary  if  there  was  but  one,  as  the  corporate  name  would  have  been  sufficient. 

"  But  first  we  shall  examine  how  the  facts  appear  from  the  affidavit,  independent  of  expla- 
nation from  the  argument  of  counsel.  The  facts  are  to  be  collected  from  the  Avords  of  the 
affidavit,  and  the  words  according  to  their  necessary  import.  We  are  not  to  be  satisfied 
with  conjecture,  nor  with  the  opinion  of  the  applicant  as  to  law,  but  his  belief  as  to  matter  of 
fact  in  the  present  stage  of  this  case  is  sufficient.  He  swears  that  the  said  New  Castle 
Presbytery  did  depose  him  from  the  said  New  Castle  Presbytery. 

"1st.  We  arc  to  ascertain  whether  it  appears  from  which  Presbytery  he  was  deposed. 
It  certainly  is  to  be  understood  that  the  word  '  said,'  refers  to  the  New  Castle  Presbytery 
before  mentioned.  But,  as  both  Presbyteries  are  known  by  the  same  name,  it  is  doubtful 
to  which  it  refers;  and  this  is  not  sufficient;  it  must  appear  that  it  was  the  incorporated 
New  Castle  Presbytery  that  deposed  him.  Now  there  is  not  one  word  in  the  whole  affida- 
vit to  show  that  the  incorporated  Presbytery  was  intended;  but  there  are  some  words,  to 
wit,  '  in  full  standing,'  which  seem  to  imply,  that  the  New  Castle  Presbytery  previously 
mentioned,  is  the  ecclesiastical  Presbytery.  Then  from  the  necessary  import  of  the  words 
it  docs  not  appear  that  the  removal,  in  point  of  fact,  was  from  the  incorporated  Pres- 
bytery. 

"Next,  we  are  to  consider  the  import  of  the  word  '  deposed.'  This  word — deposed — may 
be  understood  to  mean,  a  removal  by  a  decision  of  the  ecclesiastical  Presbytery,  or  it 
may  be  understood  to  mean  a  removal  from  the  incorporated  Presbytery,  if  not  taken  in 
connexion  with  the  word  '  said.'  Then  it  does  not  necessarily  import  removal  from  the  civil 
Presbytery.  Again,  deposing  may  comprehend  opinion  as  well  as  fact.  The  applicant 
may  be  of  opinion  that  expulsion  from  the  ecclesiastical  Presbytery  amounts  to  removal 


MR.  SERGEANT'S  ARGUMENT.  541 

us;  and  how  this  has  operated,  you  have  seen  in  the  discussion  respect- 
ing Dr.  Elliott.  For  example,  acting  as  Moderator,  he  decided  that  Dr. 
Patton's  motion  was  out  of  order.  Dr.  Patton,  very  respectfully  and  pro- 
perly, no  doubt,  said  that  he  must  appeal  from  the  decision.  Again,  the 
Moderator  pronounced  him  out  of  order:  Dr.  Patton  acquiesced,  and  sat 
down.  Well,  his  Honour  told  the  jury,  that  Dr.  Elliott  had  been  right 
in  this  decision,  on  the  ground  that  the  Committee  of  Commissions  had 
not  yet  reported,  and  therefore  there  was  no  house  to  which  an  appeal 
could  be  made.     But  then,  he  left  it  to  the  jury  thus: 

"The  Court  is  of  the  opinion,  that  the  decision  of  the  Moderator  was 
correct,  for  the  reason  given  by  him.  It  is  a  rule  of  the  Assembly,  that 
no  persons  shall  be  permitted  to  vote,  unless  they  are  enrolled;  and  until 
the  report  of  the  Committee  on  Commissions,  it  cannot  be  judicially 
known  who  are  members  of  the  house,  and  as  such,  privileged  to  take 
part  in  the  organization.  If,  however,  there  was  a  majority  for  it,  arising 
from  the  absence  of  the  Moderator,  or  the  refusal  of  the  clerks  to  report 
the  roll,  there  would  be  no  difficulty  in  organizing  the  Assembly.  The 
decision  of  the  Moderator  was  correct,  if  the  reason  assigned  was  the  true 
reason.    Jlnte,  473, 

"  The  decision  of  the  Moderator  ivas  correct,  if  the  reason  assigned 

from  the  civil  Presbytery ;  but  this  is  a  question  of  law,  and  not  of  fact,  depending  on  the 
legal  effect  of  expulsion  from  tlie  ecclesiastical  Presbytery.  The  affidavit  does  not  satis- 
factorily show  that  there  was  a  removal  from  the  incorporated  Presbytery ;  and,  therefore, 
we  are  of  opinion  that  the  question  of  removal  from  his  membership  of  the  incorporated 
Presbytery  is  not  now  before  us. 

'•  But  suppose  Francis  Hindman  to  be  expelled  by  the  ecclesiastical  Presbytery,  does  this, 
consequently,  remove  him  from  being  a  member  of  the  incorporated  Presbytery  ?  And,  if 
so,  ought  this  court  to  restore  him  by  Mandamus  to  his  membership  of  the  incorporated 
Presbytery?  The  first  consideration  is  as  to  the  effect  of  the  expulsion  on  his  corporate 
rights.  l"he  legal  effect  must  depend  on  the  constitution  of  the  act  of  incorporation.  Can 
any  expelled  Presbyter  be  a  member  of  the  corporation  ?  If  not,  we  certainly  ought  not  to 
restore  him  to  his  membership  against  the  law. 

"  See  the  act — 4  Del.  Laws,  233.  It  appears  to  us  that  the  first  section  of  this  act  ought 
not  to  be  so  constituted  as  to  give  a  right  of  membership  in  the  incorporated  Presbytery  to 
a  person  who  has  ceased  to  be  a  member  of  the  ecclesiastical  Presbytery;  and  therefore  that 
we  ought  not  to  restore  him  because  he  has  no  right  to  be  a  member.  But  suppose  the  con- 
struction of  this  law  should  be  according  to  the  letter,  and  that  as  Mr.  Hindman  was  a 
member  of  the  ecclesiastical  New  Castle  Presbytery,  at  the  time  of  passing  the  act  of  incor- 
poration, he  is  yet  a  member  notwithstanding  the  decision  of  the  ecclesiastical  Presbytery 
to  take  away  his  clerical  office.  This  decision  could  have  no  such  effect,  for  it  cannot 
repeal  the  law,  which,  if  that  is  the  true  construction,  declares  him  to  be  a  member.  There 
must  be  some  act  done  by  tlie  civil  New  Castle  Presbytery,  acting  in  the  corporate  capacity, 
declaring  his  expulsion  from  the  corporation;  or  some  act  must  be  done  preventing  Francis 
Hindman  from  exercising  his  corporate  rights,  before  there  can  be  sufficient  ground  to  war- 
rant this  court  to  issue  the  Mandamus.  And  as  no  such  acts  appear  to  have  been  done,  it 
is  the  opinion  of  this  court,  that  a  Mandamus  ought  no£  to  issue,  to  restore  him  to  his  mem- 
bership  of  the  civil  New  Castle  Presbytery. 

There  is  one  other  point  in  this  case  to  be  considered — as  to  the  emoluments  attached  to 
a  membership  of  the  civil  New  Castle  Presbytery.  It  does  not  appear  Mr.  Hindman  has 
been  elected  President,  Trustee,  or  to  any  corporate  office.  If  he  is  a  member,  we  can  per- 
ceive no  other  rights  vested  in  him,  but  the  right  of  voting  for  officers,  and  being  elected  to 
an  office ;  and  it  does  not  appear  to  us  that  any  temporal  rights  can  be  attached  to  the  right 
of  membership,  which  will  entitle  him  to  pecuniary  emolument. 

"  It  is  said  that  a  minister  without  a  call  is  entitled  to  some  stipend  out  of  the  general 
fimd;  but  this  cannot  give  any  right  to  an  expelled  minister ;  so  that  we  must  again  resort 
to  the  question  whether  he  be  a  minister.  And  we  consider  the  expulsion  conclusive  in  this 
court,  until  reversed  by  the  proper  tribunal. 

"  For  these  reasons  we  are  of  opinion  a  Mandamus  ought  not  to  be  issued,  and  therefore 
order  that  the  rule  be  discharged." 


542  PRESBYTERIAN  CHURCH  (^ASE. 

was  the  true  reason.^'  Then,  in  regard  to  this  particular,  it  went  to  t!ie 
jury  to  find,  whether  the  reason  which  Dr.  Elliott  gave,  was  really  that 
upon  which  he  acted.  I  ann  net  now  speaking  of  the  substantial  grounds 
of  this  opinion,  nor  objecting  to  the  charge,  though  I  might  do  so  on  this 
very  account:  I  here  wish  merely  to  exemplify  tlie  position  in  which  we 
have  been  placed,  by  the  course  which  the  argument  has  taken.  The 
Moderator  was  confessedly  right  in  his  decision,  yet  the  jury  are  called 
upon  to  judge,  whether  the  reason  that  he  gave  at  the  time,  was  the  true 
reason  that  influenced  his  conduct.  I  would  ask  his  Honour,  wheiher  he 
or  any  other  man,  called  upon  to  sit  in  jutigcnent,  could  stand  such  an 
ordeal?  Dr.  Elliott  was  examined  here  as  a  witness,  and  notwithstanding 
his  having  preached  from  the  text  which  has  given  so  much  offence,  when 
to  his  reverend  character  as  a  preacher  of  the  Gospel,  was  added  the 
solemn  sanction  of  an  oath,  he  was  certainly  entitled  to  the  fullest  belief. 
Yet  the  jury  were  told  to  look  into  his  heart,  and  say  whether  the  reason 
given,  was  or  was  not  the  true  reason.  And  the  validity  of  his  act,  is 
thus  made  by  the  judge  to  depend  upon  what  the  jur}'-  may  think  of  that 
question.  If  this  principle  be  sustained  by  your  Honours,  the  acts  of  the 
Church  will  hereafter  be,  not  only  of  no  authority,  but  not  at  all  respected; 
and  every  religious  denomination  of  our  land  must  be  exposed  to  the 
same  danger.  Think  not  that  it  will  be  confined  in  its  operation  to  the 
Presbyterian  Church.  Both  Old-school  and  New-school,  High-church 
and  Low-church — all  must  be  amenable  to  this  species  of  searching  inves- 
tigation. Who  will  consent  to  be  Moderator  of  the  Assembly,  if  the 
clerical  character  be  found  insufficient  to  protect  him  from  the  grossest 
suspicions  and  accusations?  Every  other  presiding  officer  finds  protec- 
tion in  the  rules  of  the  house  over  which  he  presides.  They  forbid  that 
his  motives  should  be  inquired  into  or  impugned.  The  only  question  is, 
whether  his  decision  is  right  or  wrong.  But  here,  a  Moderator  engaged 
in  the  discharge  of  the  ordinary  duties  of  his  office,  is  accused  of  con- 
spiracy, and  we  are  told  to  look  into  his  heart,  and  there  search  for  cor- 
rupt motives  and  unholy  purposes.  This  is  a  persecution  most  refined 
and  cruel,  in  comparison  with  which,  the  persecution  of  five  hundred 
ministers  and  fifty  thousand  communicants,  which  has  been  talked  of,  is 
but  as  the  light  dust  of  the  balance.  What  more  harrowing  trial  could 
those  engaged  in  the  management  of  spiritual  concerns,  be  subjected  to? 
What  more  agonizing  torture  could  be  applied,  than  they  might  be  made 
to  suffer,  in  the  progress  of  an  investigation  such  as  this?  1  am  not  now 
speaking  of  actual  suffering:  I  do  not  speak  of  the  feelings  of  my  clients 
in  the  present  case;  but  of  the  natural  and  inevitable  consequence  of  the 
court's  adding  its  sanction  to  such  a  course  of  investigation.  They  talk 
of  disrobing  ministers  of  the  Gospel.  When  have  they  spared  a  rag  of 
the  raiment  that  covered  us?  What  attempt  has  been  omitted,  which  was 
calculated  to  wound  the  feelings  of  these  reverend  men,  and  shake  the 
confidence  reposed  in  them,  by  those  to  whom  they  administer  the  bread 
of  life?  The  more  the  growth  of  this  sort  of  .spirit  has  been  favoured, 
the  more  unrelenting  it  has  naturally  become,  until  at  last  we  find  that 
even  one  of  the  learned  counsel,  in  the  excitement  of  fancied  triumph, 
could  not  forbear  to  offer  Dr.  Elliott  the  text  from  which  he  ought  to 
preach,  meaning  the  text  which  he  ought  to  observe.  Is  it  fit;  is  it  con- 
ducive to  the  interests  of  either  the  Church  or  State,  that  such  an  inves- 


MR.  SERGEANT'S  ARGUMENT.  543 

tigation  as  this  should  be  allowed,  when  gentlemen  so  correct  as  both  of 
the  learned  counsel  on  the  opposite  side  usually  are,  enter  so  deeply  into 
the  feeling  of  the  contest,  as  to  do  what  they  doubtless  must  feel  to  have 
been  unkind  and  most  unwarrantable? 

Mr.  Randall.  I  am  not  aware  that  I  said  any  thing  to  which  Mr. 
Sergeant's  remarks  can  apply.  The  charge  is  very  serious,  and  embraces 
both  of  us. 

Mr.  Sergeant.  I  refer  to  the  whole  discussion,  but  more  particularly 
to  those  passages  which  I  have  now  cited.  I  do  not  suppose  that  they 
were  meant  to  wound,  or  hurt  any  one's  feelings  or  character:  they  were 
the  mere  sallies  of  the  moment.  But  who  can  tell  what  injury  they  have 
done,  or  how  deeply  they  have  pierced?  You  can  only  judge  of  this  by 
considering  the  delicacy  of  the  character  of  ministers  of  the  gospel  before 
the  world.  It  is  as  delicate  as  the  character  of  those  who  are  called  to 
administer  justice  in  a  civil  court.  It,  as  little  as  any  thing,  can  endure 
to  be  thus  rudely  handled.  I  have  used,  and  intend  to  use,  no  harsh  word 
against  any  member  of  the  New-school,  among  whom  there  are  many 
good  men,  who  I  sincerely  wish  were  out  of  this  cause.  What  I  have 
said  has  been  sufficient  to  illustrate  the  nature  of  such  investigations,  and 
to  show  that  if  sanctioned,  they  must  end  in  the  destruction  of  the  clerical 
character  and  of  the  Church. 

I  will  now  endeavour  to  reply  to  a  suggestion  made  by  Mr.  Randall 
yesterday:  as  it  belongs  to  the  relators'  case  it  is  necessary  that  I  should 
notice  it.  Indeed,  in  the  first  instance,  it  bore  something  like  the  shape 
of  an  argument,  and  therefore  may  possiblyembarrass  the  inquiry  unless 
now  disposed  of.  He  suggested  that  these  gentlemen  who  had  been 
excluded  were  a  portion  of  the  body  of  electors  of  the  trustees.  He  said, 
indeed,  that  the  General  Assembly  was  a  quasi  corporation.  I  think  he 
said  that  it  was  to  be  treated  as  an  incorporated  body.  By  a  quasi  cor- 
poration is  meant  an  imperfect  corporation — one  which  has  some,  though 
not  all  the  powers  of  a  corporation,  conferred  by  law;  whereas  the  Gene- 
ral Assembly  has  no  civil  or  corporate  powers  whatever.  It  is  not  a 
quasi  corporation,  nor  a  corporation  in  any  sense.  But  they  are  the 
electors  of  trustees,  who  are  incorporated.  Who  are  the  electors?  The 
General  Assembly  of  the  Presbyterian  Church,  such  as  it  was  in  1799, 
when  the  charter  of  incorporation  was  granted,  and  when  there  was  cer- 
tainly no  corporate  body  at  all.  The  act  begins,  '*  Whereas  the  ministers 
and  elders  forming  the  General  Assembly  of  the  Presbyterian  Church  of 
the  United  States  of  America,  consisting  of  citizens  of  the  state  of  Penn- 
sylvania," &c. ;  and  in  the  first  section  incorporates  eighteen  persons  by 
name,  of  whom  one  third  were  clergymen.  "John  Rogers,  Alexander 
McWhorter,  Samuel  Stanhope  Smith,  Ashbel  Green,  William  M.  Ten- 
nant,  Patrick  Allison," — they  all  were  clergymen.  These  eighteen  and 
their  successors  are  incorporated.      Then  the  sixth  section  provides, 

Mr.  Sergeant  read  the  sixth  section. —  Vid.  ante,  p.  21. 

There  is  the  act,  and  it  directs  that  the  trustees  shall  be  appointed  by 
the  General  Assembly.  It  speaks  of  the  General  Assembly  as  an  existing 
body,  of  course  a  body  possessing  all  the  qualities,  attributes,  rights,  and 
capacities  which  it  had  before  the  passage  of  the  act,  and  none  other.  It 
was  a  known  body  then  existing  without  any  charter,  and  neither  a  cor- 
.poration  nor  a  quasi  corporation.      Now  one  of  two  things  must  follow, 


544  PRESBYTERIAN   CHURCH  CASE. 

The  legislature  either  meant  to  continue  the  body  the  same  as  it  had  been 
theretofore,  or  as  it  then  was;  or  they  meant  to  change  its  nature  or  attri- 
butes. If  we  adopt  the  former  supposition,  that  it  was  to  continue  such 
as  it  then  was,  the  inevitable  consequence  is,  that  the  plan  of  ISOl  was 
entirely  inadmissible,  that  it  engrafted  upon  the  Church  an  alien  body,  of 
a  different  form  of  government  and  discipline,  and  could  not  be  beneficial 
to  either  sect,  or  to  both.  Did  tlie  legislature  mean  to  alter  the  Church  in 
any  respect?  They  did  not,  or  they  would  have  said  so.  Did  they  mean 
to  make  it  a  body  corporate?  They  did  not,  or  they  would  have  done  it. 
Did  the  Church  ask  to  be  incorporated?  No,  the  very  reverse.  Wher- 
ever churches,  (that  is  the  estate,)  in  this  city  are  held  by  trustees,  the 
church  sessions  are  entirely  different  and  independent  bodies.  So  the 
General  Assembly  is  quite  separate  from  its  board  of  trustees,  who  are 
only  the  ministers  of  its  charities.  The  act  of  incorporation  left  the 
Assembly  as  it  found  it,  making  no  alteration  in  its  constitution,  or  in 
its  capacity. 

What  power  did  it  possess  at  the  time  the  charter  was  given?  If  these 
four  Synods  had  been  cut  off  before  the  year  1799,  as  the  Presbytery  of 
Philadelphia  was,  what  would  have  been  their  situation?  Would  any  civil 
tribunal  have  looked  at  the  act  to  determine  whether  it  was  right  or 
wrong?  At  that  time  the  part  of  the  Constitution  which  I  have  read  was 
in  force.  The  principles  of  civil  and  religious  liberty  were  well  defined 
and  deeply  felt;  the  consideration  of  them  had  occupied  the  best  minds 
in  the  world;  they  never  were  better  understood,  than  when  this  act  was 
passed.  Do  you  think  that  the  legislature  intended,  by  the  appointment 
of  certain  persons  and  their  successors,  to  hold  the  bag  in  which  the  funds 
were  deposited,  to  alter  the  fundamental  principles  of  Presbyterianism, 
and  to  set  the  civil  courts  over  the  ecclesiastical;  to  refer  to  them  the 
decision  of  matters,  before  belonging  exclusively  to  the  jurisdiction  of  the 
Church?  If  they  had  so  meant  they  would  have  so  said.  But  they  have 
not  said  so.  They  have  left  the  General  Assembly  exactly  as  they  found 
it — responsible  as  it  was  before,  and  no  further  or  otherwise — the  supreme 
judicatory  of  the  Presbyterian  Church,  having  final  jurisdiction  in  spirit- 
ual matters,  and  not  amenable  to  any  civil  power.  Now,  may  it  please 
your  Honours,  there  were  certain  trustees  appointed  in  1837 — four  I 
think — after  the  exscinding  resolutions  had  passed,  after  the  representa- 
tives from  the  Presbyteries  belonging  to  the  four  Synods  had  ceased  to  be 
members;  but  does  any  one  pretend  that  that  election  was  therefore  ille- 
gal ?  Yet  if  the  doctrine  advanced  be  true,  that  a  civil  court  has  a  right  to 
look  into  the  validity  of  a  decision  made  by  the  Assembly,  the  validity  of 
this  identical  decision,  the  question  may  arise  whether  the  subsequent 
election  of  trustees  was  good,  when  a  part  of  the  members  had  been 
excluded  from  voting.  Nobody  has  ever  thought  of  such  a  thing  as  this, 
even  in  the  season  of  most  embittered  strife — has  ever  thought  of  calling 
in  question  the  constitutionality  of  that  appointment ;  though  according  to 
the  doctrine  of  the  opposite  side,  the  legitimate  effect  of  the  exclusion 
would  have  been  to  invalidate  the  election  of  1837.  But  this  is  not  the 
subject  of  our  present  inquiry.  Where  the  General  Assembly  has  elected 
trustees,  evidence  being  given  of  the  existence  of  the  body,  the  certificate 
of  their  election  is  sufficientproof  of  their  having  been  duly  chosen. 

Nor  is  there  any  difficulty  in  regard  to   the  disposition  of  the  funds. 


MR.  SERGEANT'S  ARGUMENT. 


545 


Whether  the  trustees  of  charitable  funds  are  incorporated  or  not,  at  all 
events  they  are  under  the  supervision  and  control  of  the  law.  A  court 
of  equity  will  in  all  cases  see  to  the  proper  application  of  the  fund,  and  com- 
pel the  trustees,  tholigh  not  a  corporation,  to  fulfil  the  intention  of  the 
donors.  But  to  this  end  they  will  look,  not  into  the  acts  of  the  General 
Assembly  but  into  the  original  purpose  of  the  giver.  Such  donations  are 
of  two  descriptions:  they  are  to  be  applied  to  specific  objects  to  be  directed 
by  the  General  Assembly,  or  to  specific  objects  under  the  control  of  a 
Court  of  Equity.  If  placed  under  the  control  of  the  Assembly,  the  only 
question  to  be  decided  is,  which  is  the  true  General  Assembly,  and  it  is 
admitted  that  the  Assembly  of  1837,  after  the  passage  of  the  exscinding 
resolutions  continued  to  be  in  full  life,  and  as  competent  as  any  one  that 
■ever  had  existed. 

I  do  not  therefore  think  it  necessary  to  this  case  to  go  into  an  examina- 
tion of  the  acts  of  1837;  and  his  Honour  will  recollect  that  an  objection 
was  made  at  the  trial,  to  the  introduction,  on  the  part  of  the  plaintiffs,  of 
any  testimony  respecting  them.  If  that  objection  was  well  grounded  in 
any  respect,  of  course  it  will  avail  us  now. 

Judge  Rogers.     This  reason  was  not  given  then. 

Mr.  Sergeant.  If  the  reasons  of  objection  were  not  as  fully  and  satis- 
factorily stated  as  they  might  have  been,  I  would  suggest  to  your  Honours 
that  this  was  only  one  of  the  ordinary  incidents  of  such  a  trial.  The 
difficulty  under  which  we  all  necessarily  laboured  in  the  trial  of  the 
issue,  ought  to  reconcile  the  honorable  judge  who  presided  there  to  this 
review  of  his  opinion.  No  question  undergoes  the  same  full  and  satis- 
factory discussion  on  a  first  trial,  that  it  does  after  being  brought  before 
an  appellate  court.  My  learned  friend  in  his  opening  and  evidence  in- 
troduced a  new  branch  of  law — matter  entirely  foreign  to  our  ordinary 
subjects  of  study;  and  to  grasp  and  master  it,  if  any  of  us  have  done  this, 
required  much  time  and  reflection.  Those  who  have  been  acquainted 
with  other  cases  know  that  it  is  so,  in  a  greater  or  less  degree,  with  all. 
Therefore  it  has  seldom  happened  that  new  reasons — some  additional 
arguments,  have  not  been  presented  on  the  review  of  a  case  in  the 
Supreme  Court.  A  question  is  not  examined  with  the  same  care,  or 
the  same  clear  understanding,  on  its  first  discussion,  as  when  we  come  to 
rest  attentively  upon  each  point  developed  in  a  preliminary  investigation. 
As  the  pilot,  who  looks  steadily,  with  an  intent  gaze,  along  the  horizon, 
at  last  discerns  what  a  wandering  eye  would  never  have  discovered;  so 
the  mind  after  being  long  and  patiently  fixed,  discovers  words  and  mean- 
ing, where  at  first  it  could  see  nothing — where  all  was  perfectly  blank. 
I  remember  a  case,  tried  some  years  ago  in  the  Circuit  Court  of  the 
United  States,  in  which  Judge  Washington  presided  and  gave  a  clear 
opinion  to  the  jury,  who  brought  in  a  verdict  accordingly.  The  case  was 
removed  into  the  Supreme  Court,  and  after  the  opening  counsel  had  con- 
cluded his  argument.  Judge  Washington  came  up  to  me  and  said,  "  How 
could  I  have  committed  such  a  blunder?"  and  the  opinion  of  the  inferior 
court  was  reversed  to  the  entire  satisfaction  of  the  learned  judge  himself. 
Upon  the  trial  the  case  had  not  been  argued  as  it  was  before  the  appellate 
tribunal;  and  very  often  a  judge  supposes,  when  his  own  decision  comes 
up  for  review,  that  the  question  is  presented  in  entirely  a  different 
aspect  from  that  given  to  it  in  the  court  below. 

G9 


546  PRESBYTERIAN  CHURCH  CASE. 

But  I  do  not  mean  to  rest  finally  upon  the  arguments  which  I  have 
thus  offered,  though  I  think  them  perfectly  clear  and  satisfactory,  in  what- 
ever way  you  look  at  them.  1  propose  now  to  examine  into  the  acts  of 
the  Assembly  of  1837,  upon  their  own  footing,  as  if  the  court  had  the 
power  to  examine  them.  For  if  it  can  take  cognizance  of  the  acts  of  this 
and  all  other  ecclesiastical  bodies,  we  must  submit,  though  we  should 
like  to  be  more  thoroughly  persuaded  of  its  right  of  jurisdiction;  and  do 
not  feel  bound  to  conform  to  the  verdict  of  a  single  jury,  or  the  charge  of 
a  single  judge,  when  entitled  to  the  opinion  of  the  entire  tribunal.  If 
here^  finally,  the  jurisdiction  be  established,  Uiere  can  no  longer  be  any 
question  of  its  constitutionality.  The  decision  of  this  Court  is  conclu- 
sive. I  propose  therefore  to  examine  the  proceedings  of  1S37,  and  will 
end  this  part  of  the  case  with  that  examination,  which  will  be  brief.  And 
I  begin  with  asking,  by  what  law  will  you  judge  those  proceedings?  Ac- 
cording to  whose  judgment  will  you  judge  them?  What  will  you  appeal 
to,  as  a  ground  of  argument  ?  I  say  that  the  acts  of  the  Assembly  of  1837 
were  good.  Why?  Because  I  think  they  were  right.  What  I  think,  is 
however  of  no  consequence  to  any  body  else.  We  must  have  some  rule. 
What  is  it?  The  Presbyterian  Church,  by  its  highest  tribunal,  regularly 
constituted,  has  performed  certain  acts,  deliberative  and  administrative; 
ihesQ,  prima  facie,  are  certainly  good.  But  it  is  argued,  that  on  some 
ground  or  other,  they  are  wrong.  Now,  let  us  look  closely  at  this  mat- 
ter. I  do  not,  indeed,  feel  myself  competent  to  form  an  opinion  on 
spiritual  questions  for  others.  I  go  for  one  grand,  consistent,  constitu- 
tional principle,  in  all  such  matters:  that  every  man  must  have  exclusive 
cognizance  of  his  own  spiritual  concerns.  I  cannot  judge  at  all  in  regard 
to  the  spirit  of  another.  How  then  am  I  to  argue  the  question  now  pro- 
posed? Where  will  I  find  authority  for  my  doctrines?  Let  us  go  to  the 
Constitution  of  the  Church.  The  Constitution  declares,  that  the  power 
of  the  Church  and  its  jurisdiction,  are  purely  spiritual  and  moral,  and 
that  the  civil  authority  has  no  spiritual  power.  Now,  how  will  you  test 
these  acts,  and  determine  whether  they  are  right  or  wrong?  Will  you 
appeal  to  the  Scriptures?  No;  that  would  be  a  profane  use  of  them. 
They  are  not  to  be  brought  into  court,  except  where  the  law  requires 
their  use  in  the  administration  of  oaths,  or  there  are  other  cases  of  like 
necessity.  But,  if  we  do  open  the  sacred  volume,  I  maj^  not  understand  it 
as  others  do,  and  they  have  a  perfect  right  to  understand  it  for  themselves. 
My  understanding  of  it  is  a  guide  for  my  own  conduct  only,  not  a  direc- 
tory for  theirs.  Yet  the  Scriptures  are  the  rock  on  which  they  believe 
their  peculiar  system,  their  Church,  to  be  built.  I  am  not  competent  to  say 
how  they  understand  their  Bibles.  But  our  only  security  is  on  the  founda- 
tion of  the  Scriptures;  from  this  rock,  we  must  endeavour  to  avoid  being 
shifted  or  thrown  off,  each  man  upon  his  own  individual  resj)onsibility. 

We  believe  then  that  the  acts  in  question  are  warranted  by  the  consti- 
tution and  laws  of  the  Church,  as  we  interpret  them;  that  they  are  within 
the  powers  granted  to  the  General  Assembly  according  to  our  construc- 
tion of  the  grant.     Here  are  the  general  powers  entrusted  to  that  body. 

Mr.  Sergeant  read  Form  of  Government,  Chap.  XII.  Sects.  4th  and 
5th. —  Vid.  ante,  pp.  335,  336. 

To  this  body,  then,  is  given  entire  authority  over  all  the  affairs  of  the 
Church,  authority  to  determine,  not  only  the  ends  to  be  attained,  but  also 


MR.  SERGEANT'S  ARGUMENT.  547 

the  mode  in  which  power  shall  be  exercised  for  their  attainment.  They 
are  to  correct  the  errors  of  other  judicatories,  but  are  not  themselves  sub- 
ject to  correction.  They  have  a  general  superintending  jurisdiction. 
The  act  here  complained  of  is,  that  four  Synods  have  been  laid  down  or 
dissolved,  for  what  the  Assembly  considered  a  sufficient  cause.  Suppose 
it  is  objected  that  they  ought  to  have  been  suffered  to  remain  in  connex- 
ion with  the  Church;  how  long  should  they  have  been  allowed  to  remain? 
If  they  cannot  now  be  laid  down,  when  can  it  be  done?  Must  the  relation 
continue  to  exist  for  ever?  It  is  very  easy  to  object,  but  our  opponents 
must  fill  the  whole  of  the  chasm  which  they  make;  they  must  substitute 
an  authority  for  ours.  They  must  erect  a  tribunal  which  will  do  what 
Judge  Rogers  refused  to  do — and  in  this  decision  I  think  he  was  right — 
.to  admit  evidence  of  the  disorders  which,  acccording  to  our  notions,  exist 
in  the  four  Synods.  If  an  appeal  is  to  be  taken  from  the  decision  of  the 
Assembly,  the  appellate  court  should  have  before  it  the  whole  of  the  evi- 
dence that  was  before  the  Assembly.  They  had  collected  testimony  by 
a  public  examination,  conducted  in  the  presence  of  the  delegates  from  the 
.  four  Synods,  and  knew  what  the  effects  of  the  "  Plan  of  Union"  had  been 
in  all  the  borders  of  the  Church,  and  in  the  General  Assembly  itself. 
They  had  therefore  the  means  of  forming  a  judgment,  means  to  be  made 
use  of  so  far  as  they  had  liberty  to  use  them;  and  if  their  decision  was 
unconstitutional  and  void,  when  can  they  make  such  a  decision;  or,  if 
they  never  can,  what  tribunal  is  to  receive  the  same  evidence  and  adju- 
dicate the  matter  ?  How  is  the  disorder  to  be  remedied  ?  I  submit,  that  if 
our  opponents  cannot  point  us  to  such  a  tribunal  and  to  such  a  remedy,  this 
is  a  powerful  argument  against  them.  Disorder  must  then  be  remediless. 
This  court  may  undo  what  is  done  by  the  Church,  but  can  they  do  what 
is  obviously  essential  to  be  done?  They  may  defeat  and  counteract  the 
rightful  authority,  but  can  they  substitute  a  new  one?  Will  they  under- 
take themselves  to  administer  the  needful  discipline  and  government? 

Again,  when  a  law  enacted  by  a  proper  law-making  power,  or  an 
administrative  act  performed  by  a  proper  administrative  power,  is  sub- 
mitted to  examination  on  the  ground  of  its  unconstitutionality,  there  are 
certain  well  settled  principles  applicable  to  the  question.  For  instance, 
if  an  act  of  Congress  be  impeached  in  a  court  of  the  United  States;  or  an 
act  of  the  Legislature  of  Pennsylvania  in  a  court  of  the  United  States,  or 
in  one  of  our  State  courts,  there  are  established  rules  of  construction  which 
must  govern  the  case.  And  if  this  court  can  here  try  a  question  as  to  the 
constitutionality  of  an  act  of  the  Church,  we  must  be  allowed  the  benefit 
of  these  same  principles  and  rules.  What  are  they?  There  is  one  great 
one: — He  who  complains  is  bound  to  show,  that  the  act  is  in  conflict  with 
some  express  provision  of  the  constitution.  He  must  lay  the  two  instru- 
ments side  by  side,  and  show,  either  a  manifest  transcendence  of  power 
in  that  to  which  he  objects,  or  a  manifest  interference  between  the  two, 
so  that  they  cannot  stand  together.  An  argument  drawn  from  the  general 
injustice  of  the  act  will  not  at  all  avail  him.  This  has  been  decided  in  the 
courts  of  Pennsylvania,  and  in  those  of  the  United  States,  over  and  over 
again.  Is  it  charged  against  an  act  of  the  legislature  that  it  is  retrospec- 
tive? There  is  nothing  in  our  Constitution,  or  in  the  Constitution  of  the 
United  States  which  prohibits  retrospective  legislation.  Accordingly, 
acts  of  the  legislature  have  been  confirmed  in  this  court  which  were  entirely 


548  TRESBYTERIAN  CHURCH  CASE. 

retrospective;  and  in  a  case  brought  up  here  from  one  of  the  northern 
counties,  a  retrospective  lease  was  held  good;  by  reason  of  which  deci- 
sion, was  reversed  in  effect  a  judgment  of  this  court,  which  had  pro- 
nounced such  a  lease  void.  You  must,  as  I  have  said,  lay  the  two  instru- 
ments side  by  side,  and  show  that  one  cannot  take  effect  without  destroy- 
ing the  other:  then  you  are  to  decide  which  is  of  the  highest  authority. 
Now  you  must  extend  this  rule  to  the  case  before  us,  and  point  out  that 
provision  of  the  constitution  of  the  church  which  inhibits  the  power 
exercised  by  the  Assembly.  Have  our  opponents  done  this?  If  not,  and 
if  it  cannot  be  done,  the  acts  to  which  they  object  are  not  unconstitutional 
in  any  sense.  Do  they  require  us  to  point  out  the  part  in  which  that 
power  is  granted  ?  We  say  it  is  granted  in  the  passages  which  I  have 
read;  that  we  have  had  it  by  practice,  usage,  and  common  consent,  from 
time  immemorial;  or,  what  is  amply  sufficient  for  our  purpose,  that  no 
clause  of  the  constitution  has  been  violated.  Then,  you  cannot  say,  in 
this  case,  consistently  with  established  principles,  that  the  Assembly  has 
passed  an  unconstitutional  act.  Well,  will  you  say,  that  here  was  an 
improper  exercise  of  power?  To  that  length  I  think  your  Honours  will 
not  go.  If  the  power  exist,  the  Assembly  alone  is  responsible  for  its 
proper  exercise.  If,  however,  this  question  is  to  be  examined,  I  must 
enter  upon  it,  though  I  do  so  with  reluctance.  Incompetent  as  I  feel  for 
the  humble  range  of  duties  to  which  I  am  ordinarily  called,  I  feel  infi- 
nitely more  incompetent  for  this  task.  I  hardly  know  how  to  set  out 
upon  an  inquiry  which  I  am  sure  will  be  very  unprofitable;  but  I  will  try 
to  avoid  being  tedious. 

I  will  endeavour,  if  I  must  enter  upon  this  subject,  to  show,  in  the 
first  place,  that  the  separation  effected  by  the  several  acts  abrogating 
the  "  Plan  of  Union,"  and  exscinding  the  four  Synods,  was  essential  to 
the  welfare  of  the  Church.  I  think  this  point  is  clearly  in  evidence 
before  your  Honours — I  speak  not  of  parol  evidence,  but  of  that  of  a 
more  authoritative  character.  The  resolutions  of  the  Assembly  give  as 
one  reason  for  those  acts,  that  the  "  Plan  of  Union"  itself  had  not  been 
conformed  to;  and  that  the  laxity  of  practice  under  it  had  been  pro- 
ductive of  great  disorder  and  confusion:  I  suppose  I  may  take  for 
granted  that  the  welfare  of  the  Church  is  not  promoted  by  confusion 
and  disorder.  On  the  same  page  of  the  paper-book  which  contains 
the  affirmation  of  the  foregoing  fact  by  the  Assembly,  which  must  be 
taken  to  be  sincere,  we  find  certain  resolutions  of  inquiry  into  the 
conduct  of  inferior  judicatories  offered  and  passed;  which  were  imme- 
diately followed  by  a  notice  of  a  protest  against  them  by  Mr.  Hay  and 
others,  and  a  notice  from  Mr.  Cleaveland,  for  himself  and  others,  of  a  pro- 
test against  the  abrogation  of  the  "  Plan  of  Union."     Then, 

"  Mr.  Breckinridge  gave  notice,  that  he  would  to-morrow  morning  offer 
a  resolution  to  appoint  a  committee,  to  consist  of  equal  numbers  from  the 
majority  and  minority  on  the  vote  to  cite  inferior  judicatories,  to  inquire 
into  the  expediency  of  a  voluntary  division  of  the  Presbyterian  Church. 

^^ Saturday  morning,  May  21th. — Agreeably  to  notice  given  last  even- 
ing, Mr.  Breckinridge  moved  that  a  committee  of  ten  members,  of  whom 
an  equal  number  shall  be  from  the  majority  and  minority  of  the  vote  on 
the  resolutions  to  cite  inferior  judicatories,  be  appointed  on  the  state  of 
the  Church."     ./inte,  p.  3S. 


MR.  SERGEANT'S  ARGUMENT.  549 

In  the  very  adoption  of  this  resolution  was  a  declaration  by  the  whole 
Assembly,  that  it  was  then  expedient  and  essential  to  treat  of  a  division 
of  the  Church.  I  hope  this  will  never  be  lost  sight  of;  and  when  we  are 
charged  again  with  sinister  views,  we  may  answer,  that  the  whole  As- 
sembly— the  New-school  as  well  as  the  Old-school — were  convinced  that 
a  separation  could  not  be  avoided;  that  the  Church  must  be  divided — 
peaceably,  if  it  could  be,  but  at  any  rate,  that  it  must  be  divided.  Then 
a  committee  was  appointed,  composed  of  five  from  one  side  and  five  from 
the  other,  for  the  two  parties,  by  their  votes,  had  become  a  known  and 
distinguishable  majority  and  minority.  In  subsequent  pages,  you  will 
find  what  the  two  portions  of  this  committee  submitted  to  each  other  and 
to  the  Assembly.  They  negotiated  just  like  the  representatives  of  two 
foreign  powers,  acknowledged  to  be  adverse  in  their  views.  Their  ap- 
pointment shows  that  it  was  impracticable  to  get  along  farther  without 
division.  They  were  already  divided,  irreconcilably.  Here  is  the  first 
proposition  submitted  by  the  Old-school — No.  1  of  the  majority: 

"  The  portion  of  the  committee  which  represents  the  majority,  submit 
for  consideration : 

"  1.  That  the  peace  and  prosperity  of  the  Presbyterian  Church  in  the 
United  States,  require  a  separation  of  the  two  portions  called  respectively 
the  Old  and  New  School  parties,  and  represented  by  the  majority  and 
minority,  in  the  present  Assembly."    Jlnte,  40. 

What  say  the  minority  to  this?  "Whereas  the  experience  of  many 
years  has  proved  that  Ibis  body  is  too  large  to  answer  the  purposes  con- 
templated by  the  constitution,  and  there  appear  to  be  insuperable  obstacles 
in  the  way  of  reducing  the  representation:" 

This  is  stronger  than  the  language  of  the  majority.  The  minority,  as 
I  understand  the  matter,  may  be  called,  unreservedly,  the  New-school. 

"And  whereas,  in  the  extension  of  the  Church  over  so  great  a  territory, 
embracing  such  a  variety  of  people,  difierence  of  view  in  relation  to 
important  points  of  church  policy  and  action,  as  well  as  theological 
opinion,  are  found  to  exist: 

"  Now,  it  is  believed,  a  division  of  this  body  into  two  separate  bodies, 
which  shall  act  independently  of  each  other,  will  be  of  vital  importance 
to  the  best  interests  of  the  Redeemer's  kingdom."   Jlnte,  41. 

That  is  the  language  of  the  minority:  ^^  Now,  it  is  believed,  a  divi- 
sion of  this  body  will  be  of  vital  importance  to  the  best  interests 
of  the  Redeemer's  kingdom.^'  And  if  separation  was  of  vital  import- 
ance to  the  best  interests  of  the  Redeemer's  kingdom — a  kingdom  not  of 
this  world,  though  it  concerns  all  who  are  in  the  world,  it  follows,  that 
unless  a  separation  had  been  efiected,  these  interests  must  have  been 
sacrificed.  Who  then  will  attempt  to  force  us  to  sacrifice  such  great  inter- 
ests? I  am  aware — and  I  mean  to  do  full  justice  to  these  gentlemen — 
that  they  afterwards  endeavour  to  avoid  the  efiect  of  what  they  had 
declared  in  the  projet,  laid  before  their  brethren  of  the  committee.  In 
their  report  subsequently  submitted  to  the  Assembly,  they  say, 

"  The  subscribers  had  believed  that  no  such  imperious  necessity  for  a 
a  division  of  the  Church  existed,  as  some  of  their  brethren  supposed;  and 
the  consequences  of  division  would  be  greatly  to  be  deprecated.  Such 
necessity,  however,  being  urged  by  many  of  our  brethren,  we  have  been 
induced  to  yield  to  their  wishes,  and  to  admit  the  expediency  of  a  divi- 


550  PRESBYTERIAN  CHURCH  CASE. 

sion,  provided  the  same  could  be  accomplished  in  an  amicable,  equitable, 
and  proper  manner."    Jlnte,  40. 

Then,  may  it  please  your  Honours,  in  the  projet  which  they  submit  to 
one-half  of  the  committee,  the  representatives  of  the  majority,  they  do 
distinctly,  without  any  equivocation  or  limitation,  say  that  a  division  is 
of  vital  importance  to  the  best  interests  of  the  Redeemer's  kingdom;  and 
offer  this  declaration,  as  a  conceded  basis  of  the  concurrent  report  to  be 
made  to  the  Assembly,  provided  they  should  agree  upon  subordinate 
matters — the  details  of  the  plan.  When  the  two  committees — five  and 
five — commenced  their  negotiations,  on  one  thing  they  are  agreed — that 
a  division  of  the  Church  is  indispensable.  Well,  did  the  Assembly  agree 
in  this  opinion?  I  do  not  mean  to  lay  great  stress  just  now  upon  the  dif- 
ference in  the  language  of  the  minority's  committee,  in  their  subsequent 
report.  I  take  at  present  only  their  first  opinion  on  the  subject,  as  offered 
in  terms  to  the  other  side,  making  no  comparison  between  that  and  what 
they  afterwards  affirm,  or  the  scene  exhibited  in  1838  in  the  church  in 
Ranstead  Court. 

This  purpose  in  which  all  seemed  agreed,  and  the  wisdom  of  which  the 
minutes  demonstrate,  the  majority  afterwards  carry  into  effect.  Your 
Honours  will  perceive  by  the  proceedings  of  both  1837  and  '38,  that  there 
existed  such  difficulties,  strife  and  disorder,  as  strongly  confirmed  the  opi- 
nion thus  expressed  by  both  parties,  as  were  subversive  of  church  govern- 
ment and  discipline;  and  that  instead  of  the  Assembly's  having  power  to 
correct  the  evil,  by  any  ordinary  process,  it  threatened  to  destroy  all  the 
power  that  the  body  possessed.  Such  was  the  heat  of  controversy,  that 
scarcely  a  resolution  could  be  passed  without  being  followed  by  a  protest, 
scarcely  a  division  made  without  an  angry  conflict.  The  known  division 
of  the  house  into  two  well  defined  parties,  affected  even  the  appointment 
of  a  committee,  which  bore  the  character  of  a  congress  of  representatives 
from  hostile  powers.  No  one  who  looks  at  the  situation  of  affairs  can 
think  the  statements  of  either  party  exaggerated;  can  doubt  that  division 
was  of  vital  importance  to  the  best  interests  of  the  Redeemer's  kingdom. 
In  such  a  state  of  things  the  Assembly  could  not  govern  itself,  much  less 
the  Church  in  its  whole  extent.  All  authority  was  lost — you  see  how 
completely  and  finally  it  was  lost  in  1838.  But,  in  1837,  the  line  of 
division  between  the  two  parties  was  well  defined:  they  were  ranged  on 
opposite  sides — the  Old-school  and  the  New-school.  When  a  committee 
was  to  be  appointed,  composed  in  equal  portions  of  the  two  parties, 
every  body  knows  where  to  look  for  New  and  where  for  Old  school 
men.  They  no  more  mingled  than  do  the  waters  of  the  Alleghany  and 
Monongahela  at  their  junction,  where  the  colour  of  each  is  as  distinct  as 
where  the  streams  flow  separate. 

Farther,  the  root  of  all  this  difficulty  was  understood — this  cannot  be 
disputed — was  understood  to  be  in  the  plan  of  union  of  1801.  The 
minutes  of  the  Assembly  of  1837  show  this  conclusively.  The  truth  is 
that  aliens  had  been  admitted  into  the  judicatories  of  the  Church.  This 
we  could  have  proved,  and,  having  offered  to  do  so,  are  entitled  to  the 
benefit  of  the  fact  as  if  we  had  proved  it.  They  were  brought  in  under 
the  operation  of  the  plan  of  1801.  Now  his  honour.  Judge  Rogers,  in- 
structed the  jury,  that  the  introduction  of  lay  delegates  from  Congregational 
establishments  into  the  judicatories  of  the   Presbyterian   Church,  was  a 


MR.  SERGEANT'S  ARGUMENT. 


551 


violation  of  the  fundamental  principle  of  Presbyterianism;  and  in  con- 
travention of  the  act  of  the  Legislature  of  Pennsylvania,  incorporating  the 
trustees  of  tlie  Church;  but  he  did  not  seethe  bearing  of  this  doctrine 
upon  the  present  case.  His  views  on  the  subject  are  more  fully  explained 
in  the  preceding  pages  of  the  charge.  Speaking  of  the  "  Plan  of  Union," 
he  says, 

"  It  is  not  a  union  of  the  Presb3^erian  Church  with  a  Congregational 
church,  or  churches,  but  it  purports  to  be,  and  is,  a  Plan  of  Union 
between  individual  members  of  the  Presbyterian  and  Congregational 
churches,  in  that  portion  of  the  country  which  was  then  denominated  the 
new  settlements.  It  is  advisory  and  recommendatory  in  its  character — 
has  nothing  obligatory  about  it.  A  Congregational  church,  as  such,  is 
•not  by  force  of  the  agreement  incorporated  with  the  Presbyterian  Church. 
It  has  no  necessary  connexion  witli  it;  for  it  is  only  when  the  congrega- 
tion consists  partly  of  those  who  hold  the  Congregational  form  of  discip- 
line, and  partly  of  those  who  hold  the  Presbyterian  form,  and  there  is  an 
appeal  to  the  Presbytery,  (as  there  may  be  in  certain  cases)  that  the 
Standing  Committee  of  the  Congregational  church,  consisting  partly  of 
Presbyterians  and  partly  of  Congregationalists,  may,  or  shall  attend  the 
Presbytery,  and  may  have  the  same  right  to  sit  and  act  in  the  Presbytery 
as  a  ruling  elder.  And  whatever  may  have  been  occasionally  the  instan- 
ces to  the  contrary,  this  I  conceive  to  be  the  obvious  construction  of  the 
regulation.  That  part  of  the  agreement  was  intended  as  a  safe-guard,  or 
protection  of  the  rights  of  all  the  parties  to  be  affected  by  it,  without  any 
design  to  confer  upon  the  Standing  Committeee  all  the  rights  of  a  ruling 
elder. 

"  I  view  it  as  a  matter  of  discipline,  and  not  of  doctrine,  the  effect  of 
which  is  to  exempt  those  members  of  the  different  communions  who 
adopted  it,  from  the  censures  of  the  Church  to  which  they  belong,  and 
particularly  the  clerical  portion  of  them." 

"  If,  as  is  stated,  the  Standing  Committee  of  Congregational  churches 
have  claimed  and  exercised  the  same  rights  as  ruling  elders  in  Presbyte- 
ries, and  in  the  General  Assembly  itself,  it  is  an  abuse  which  may  be  cor- 
rected by  the  proper  tribunals;  but  surely  that  is  no  argument,  or  one  of 
but  little  weight,  to  show  that  the  Plan  of  Union  is  unconstitutional  and 
void."     Anie,AQS,%. 

By  these  arguments  he  arrives  at  the  conclusion  that  lay  delegates  were 
admitted  only  in  a  very  limited  manner  by  the  "Plan  of  Union" — only 
when  an  appeal  by  a  Presbyterian  member  of  a  mixed  church  was  pend 
ing  before  the  judicatory.  To  this  point  I  beg  leave  again  to  invite  the 
attention  of  your  Honours:  it  has  been  debated  already  on  both  sides. 
The  question  turns  on  the  construction  of  the  last  of  the  rules  contained 
in  the  plan  of  ISOl,  especially  the  latter  part  of  the  rule:  "  And  provi- 
ded the  said  standing  committee  of  any  church,  shall  depute  one  of  them- 
selves to  attend  the  Presbytery,  he  may  have  the  same  right  to  sit  and 
act  in  the  Presbytery,  as  a  ruling  elder  of  the  Presbyterian  Church." 
Now  I  understand  the  construction  contended  for  to  be,  that  this  right  of 
sitting  and  acting  in  the  Presbytery  is  restricted  to  the  case  of  the  appeal 
before  mentioned.  But  the  whole  must  be  read  in  connexion  in  order  to 
comprehend  the  matter  fully. 


552 


>RESBYTERIAN  CHURCH  CASE. 


Here  Mr.  Sergeant  read  Section  4th  of  the  "Plan  of  Union." — Vid. 
ante,  p.  49. 

I  presume  this  latter  clause  has  been  considered  as  a  proviso;  and  it  is 
so  awkward  written  that  it  might  appear  to  be  such  at  first  sight.  It  is 
not  however  a  proviso;  but  the  mode  of  expression  used  is  merely  an- 
other form  for  "  If  the  said  standing  committee  of  any  church  shall  depute 
one  of  themselves,"  &c.  It  is  hardly  an  allowable  mode  of  expression, 
but  certainly  is  not  intended  as  a  proviso,  or  a  limitation  to  what  goes 
before.  It  is  a  farther  enactment,  which  is  clearly  obvious  from  the  fact 
that  the  case  of  an  appeal  is  just  the  very  one  in  which  a  ruling  elder 
would  have  no  right  to  sit;  for  no  member  of  the  inferior  judicatory  can 
sit  in  the  superior,  while  an  appeal  from  a  decision  made  by  himself  as  a 
member  of  the  lower  court  is  pending.  The  standing  committee-man 
"  may  have  the  same  right  to  sit  and  act  in  the  Presbytery  as  a  ruling 
elder  of  the  Presbyterian  Church."  But  in  that  Church  a  ruling  elder 
cannot  attend  the  Presbytery  when  it  is  engaged  in  hearing  an  appeal  from 
his  own  session,  except  as  a  party;  he  cannot  sit,  debate,  and  vote.  Such 
at  least  is  my  understanding  of  a  provision  to  be  found  in  the  Book  of 
Discipline,   Chap.   VII.,  Sec.  Ill,  No.  12. 

"Members  of  judicatories  appealed  from  cannot  be  allowed  to  vote  in 
the  superior  judicatory,  on  any  question  connected  with  the  appeal." 

If  a  ruling  elder  of  a  body  appealed  from  cannot  vote  and  act  in  the 
higher  court,  in  the  trial  of  the  appeal,  surely  it  was  not  intended  to  give 
a  standing  committee  man  that  right.  If  the  provision  means  to  give  him 
the  right  of  sitting  and  acting  only,  when  a  member  of  the  Presbytery 
would  enjoy  the  same  right,  upon  the  construction  of  the  opposite  coun- 
sel, he  could  not  act  at  all.  "  And  provided  the  said  standing  committee 
of  any  church,  shall  depute  one  of  themselves  to  attend  the  Presbytery, 
he  may  have  the  same  right  to  sit  and  act  in  Ihe  Presbytery,  as  a  ruling 
elder  of  the  Presbyterian  Church."  That  is,  if  his  Honour's  opinion  be 
correct,  he  shall  either  have  the  right  to  sit  and  act,  when  an  elder  would 
have  no  such  right,  and  in  direct  violation  of  an  established  principle  of 
the  constitution;  or  just  as  an  elder,  which  would  be  not  at  all,  or  as  if  it 
were  said,  if  the  standing  committee  shall  depute  one  of  themselves  he 
shall  not  have  a  right  to  sit  and  act,  which  is  absurd.  Not  only  is  the 
present  law  of  the  Church  such  as  I  have  shown,  but  from  the  Digest,  page 
332,  it  appears  that  such  has  been  the  law  of  the  Assembly  for  near  half 
a  century. 

"Ordered,  that  the  business  of  the  appeal,  introduced  last  session,  be 
now  resumed:  whereupon  the  parties  were  heard  at  full  length;  and  pre- 
viously to  the  discussion  of  the  merits  of  the  cause,  it  was  Resolved,  That 
no  minister  belonging  to  the  Synod  of  Philadelphia,  nor  elder  who  was  a 
member  of  the  judicature  when  the  vote  appealed  from  took  place,  shall 
vote  in  the  decision  thereof  by  this  Assembly.  The  Moderator  being  a 
member  of  the  Synod  of  Philadelphia  withdrew,  and  Dr.  McKnight  took 
the  chair." 

Then,  may  it  please  your  Honours,  it  is  perfectly  manifest,  that  as  a 
member  of  tlie  lower  court,  cannot  sit  and  act  in  the  upper,  while  an 
appeal  from  the  former  is  tried;  as  this  was  the  practice  as  early  as  the 
year  1792,  has  continued  to  be  so  ever  since,  and  is  now  the  subject  of  an 
express  constitutional  regulation;  since  the  rule  is  so  imperative  as  to 


MR.  SERGEANT'S  ARGUMENT.  553 

require  that  even  a  Moderator  shall  leave  the  chair,  the  construction  put 
upon  this  provision  by  his  Honour  must  be  erroneous.  It  must  mean 
something  else.  And  what  else  can  it  mean,  than  that  the  mixed  churches 
shall  be  represented  in  the  Presbytery  by  lay  delegates?  But  if  I  have 
succeeded  in  showing  that  the  clause  under  consideration  is  not  a  proviso, 
that  it  admits  standing  committee  men  to  the  Presbytery  in  all  cases,  and 
not  only  in  the  case  of  an  appeal,  what  is  the  inevitable  consequence? 
This  construction  of  the  '*  Plan  of  Union"  overturns  the  whole  basis  of 
the  argument  on  the  other  side.  The  opposite  counsel  deny  that  that 
plan  admitted  a  single  lay  delegate  to  a  seat  in  any  church  judicatory, 
except  in  the  case  of  an  appeal;  acknowledging  that  if  it  had  done 
so,  it  would  have  been  bad.  Because  of  this  restriction  upon  the  privi- 
lege of  the  comm.ittee  men,  say  they,  the  "Plan"  was  unobjectionable; 
therefore  the  act  of  abrogation,  and  the  exscinding  resolutions  were  uncon- 
stitutional and  void;  therefore  our  proceedings  in  1838  were  rightful, 
and  you  were  carried  out  of  the  church  in  Ranstead  Court,  and  into  the 
church  on  Washington  Square  without  knowing  it.  If  the  basis  fails  the 
whole  superstructure  fails  with  it.  It  is  evident  from  the  minutes  that 
the  "  Plan  of  Union"  was  repealed  chiefly  because  it  admitted  aliens 
into  the  Church  judicatories;  and  the  argument  on  the  other  side  is  that 
the  repeal  was  unnecessary  because  the  plan  did  not  admit  aliens.  If  this 
construction  of  the  act  prove  fallacious,  the  argument  founded  on  it  must 
fall  to  the  ground;  and  if  the  repeal  was  necessary,  no  less  so  was  the 
consequence  of  the  repeal,  the  dissolution  of  the  four  Synods. 

Let  not  any  one  say  hastily  that  the  admission  of  lay  delegates  into  the 
judicatories  of  the  Church  is  a  small  thing.  I  will  not  pretend  to  argue 
how  material,  how  essential  a  matter  it  was  to  these  parties.  But  let  me 
say — and  this  in  answer  to  the  argument  drawn  from  the  alleged  ac- 
quiescence of  the  Presbyteries — that  one  error  like  the  first  step  in  a 
wrong  direction,  though  but  an  imperceptible  departure  from  the  right 
line,  always  results  in  deviating  farther  and  still  farther  from  the  way  of 
truth,  until  a  distance  is  reached  which  could  not  at  first  have  been 
anticipated.  The  admission  of  Congregationalists  might  have  seemed  a 
small  thing  in  1801.  Doubtless,  it  was  but  a  small  thing  then.  Perhaps 
it  was  fit  that  the  experiment  should  be  tried,  though  the  result  has  not 
suited  all  subsequent  times.  At  that  period  the  General  Assembly 
could  not  pretend  to  see  so  far  as  the  present  day.  What  was 
then  but  an  experiment,  having  since  become  known  in  its  power- 
ful and  disastrous  consequences,  they  have  brought  to  an  end.  The 
"  Plan  of  Union"  was  certainly  not  irrevocable.  How  could  it  be  so? 
How  could  it  be  maintained  for  one  hour  against  the  will  of  the  Assem- 
bly? Our  Congretional  brethren  where  at  liberty  to  go  whenever  it 
pleased  them,  as  are  the  members  of  any  Church;  and  if  the  other  party 
had  this  liberty,  how  is  it  that  the  party  that  I  represent— the  Presby- 
terians of  the  old  stock,  could  not  put  aside  the  weight  which  oppressed 
them;  could  not  shake  off  the  burden  under  which  they  were  bending  to 
the  earth.  According  to  the  doctrine  of  our  opponents  the  Assembly 
made  a  one-sided  bargain  :  such  it  is  certainly  claimed  to  be.  The  evils 
which  resulted  from  the  "  Plan  of  Union"  were  gradually  discovered. 
In  the  language  of  the  committee  of  the  minority  they  were  "  found  to 
exist:"  thev  had  not  been  at  all  foreseen.     When  at  last  they  came  to 

70 


554  PRESBYTERIAN  CHURCH  CASE, 

light  the  opposite  party  was  admonished  of  their  existence,  and  to  both 
sides  the  question  was  submitted  whether  this  root  of  evil  should  not  be 
eradicated.  But  we  are  told  that  the  welfare  of  the  Church  must  be 
sacrificed;  that  the  great  interests  of  the  Redeemer's  kingdom  must  be 
abandoned,  rather  than  that  a  separation  should  be  effected.  Yet  the 
security  of  those  interests  which  had  been  confided  to  the  General  As- 
sembly— should  it  not  have  been  the  chief  object  of  concern,  the  polar 
star  which  guided  their  course?  Were  they  bound  to  suffer  a  vine  capa- 
ble of  bearing  fruit  to  perish  in  their  hands,  for  want  of  lopping  off  a  single 
branch?  Nay,  must  they  let  the  whole  vineyard  go  to  destruction  rather 
than  transplant  one  strange  vine  into  a  soil  more  congenial  to  its  growth, 
the  soil  in  which  it  first  grew?  If  the  Assembly  had  left  this  important 
work  undone  they  would  have  betrayed  the  great  interests  confided  to 
their  care.     The  language  of  the  minority  is  conclusive  upon  this  point. 

I  did  mean  to  have  traced  out  the  proceedings  of  the  committee,  the 
two  portions  of  which  disagreed  chiefly  in  regard  to  the  succession  of  the 
Assembly,  which  the  New-school  refused  to  allow  us  to  retain.  But  it  is 
enough  to  say  that  they  were  not  reconciled  ;  that  an  amicable  separation 
could  not  be  effected,  though  separation  was  on  both  sides  declared  indis- 
pensable. If  then  the  four  Synods  were  exscinded  to  compel  a  separa- 
tion, instead  of  the  acts,  being  what  it  has  been  termed,  a  wanton  exercise 
of  power,  it  was  required  by  the  clearest  dictates  of  duty;  we  had  no 
choice  in  the  matter.  The  two  parties,  I  have  said,  could  not  be  recon- 
ciled: they  could  not  separate  in  peace.  Well,  the  majority  made  a 
separation  ;  the  minority  went  away  and  consulted  counsel  learned  in 
law;  and  now  they  are  both  where  you  see  them.  And  instead  of  being 
allowed  to  hope  for  the  restoration  of  peace,  that  peace  which  we  all 
agreed  could  be  promoted  only  by  division,  we  are  told  that  we  must  be 
forced  together  again,  that  the  two  contending  parties  may  renew  in  each 
General  Assembly  the  scuffle  for  the  ascendency;  without  caring  for  those 
great  interests  for  the  promotion  of  which  the  committee  whose  language 
I  have  used  was  appointed. 

The  act  of  excision  was  the  act  of  the  majority,  and  it  was  the  only 
practicable  measure  that  remained.  They  who  performed  it  were  the 
Assembly:  they  were  in  possession  of  all  the  powers  and  rights  of  that 
body,  and  were  bound  to  provide  for  the  interests  of  the  Church  under 
their  care.  As  they  knew  well  who  were  on  one  side,  and  who  on 
the  other;  as  the  lines  of  demarcation  were  clearly  perceptible,  and  it 
was  perfectly  evident  where  and  how  the  separation  could  be  best  effect- 
ed, with  as  much  regard  as  possible  to  the  feelings  and  interests  of  both 
parties,  the  act  was  performed.  We  have  no  cause  for  regretting  what 
we  have  done.  Our  only  regret  is,  that  the  other  party,  abandoning  the 
ground  that  division  is  necessary  to  the  welfare  of  the  Church,  now  view 
the  matter  in  a  different  light,  and  think  that  the  best  interests  of  the 
Redeemer's  kingdom  will  have  been  promoted  by  this  law  suit,  if  they 
should  prove  finally  successful.  The  utmost  that  their  success  promises 
to  accomplish  is  to  bring  the  two  parties  again  together.  From  the 
history  of  the  past  your  Honours  may  see  plainly  what  must  result  from 
such  an  union. 

If  any  more  evidence  on  this  subject  is  needed,  I  would  refer  to  a  little 
matter,  which  may  be  of  some  weight  in  its  bearing  on  the  same  point, 


MR.  SERGEANT'S  ARGUMENT. 


555 


though  I  shall  not  lay  much  stress  upon  it.  In  the  pastoral  letter  drawn 
up  by  the  Assembly  that  met  in  the  First  Presbyterian  Church,  they  say, 

*' We  could  not  fail  to  perceive,  in  a  General  Assembly  concentrating 
in  itself  legislative,  judicial,  and  executive  power,  and  dispensing  the 
discipline,  the  honours,  and  the  copious  revenues  of  the  Church,  the  ele- 
ments of  an  ecclesiastical  organization,  which  with  less  pretension  in  the 
beginning,  had  once,  for  more  than  ten  centuries,  subverted  the  liberties 
and  rolled  back  the  civilization  of  the  world. ^'     t-^/i/e,  192. 

That  is  the  account  which  the  New-school  give  of  those  from  whom 
they  have  separated.  First,  we  are  represented  as  usurping  all  power  in 
the  Church,  and  dispensing  magnificent  revenues;  and  in  the  next  para- 
graph, as  attempting  to  unite  spiritual  and  temporal  authority,  which  is 
plainly  intimated  by  the  reference  to  papal  power;  to  found  a  papal 
throne.  I  take  for  granted  that  they  really  entertained  the  views  here  ex- 
pressed: perhaps  they  thought  there  were  already  some  popes  in  the  house 
which  they  left.  Do  they  not  go  a  little  farther?  They  say  the  Church 
is  in  danger  of  corruption;  that  though  it  is  not  now  vitally  affected,  bad 
times  may  come  which  will  realize  their  worst  fears.  Do  they  not  tell 
us  plainly,  must  not  every  one  understand  their  language  to  mean,  "  We 
leave  you  because  you  are  growing  corrupt;  because  you  have  usurped  an 
authority  which  is  fast  overspreading  both  spiritual  and  civil  liberty,  as 
did  a  power  before  you,  which  began  more  humbly  than  you  have  done"? 
To  this  language  I  advert  as  another  indication  of  the  truth  of  what  both 
sides  had  previously  alleged,  that  peace  could  not  be  maintained  and 
religion  promoted  without  a  separation  of  the  conflicting  parties, 

I  have  now  submitted  to  your  Plonours  my  views  of  the  evidence  upon 
this  point,  so  far  as  it  lies  before  you,  and  they  seem  amply  sufficient  to 
support  my  position.  This  1  have  done,  assuming  the  facts,  to  a  certain 
extent,  to  be  as  stated.  And  was  not  the  Assembly  right  in  regard  to 
these  facts?  Where  has  the  contrary  been  shown?  Has  any  proof  been 
offered  that  they  were  not  as  represented?  None  at  all.  What  then  was 
wanting?  Admitting  as  our  opponents  must,  that  we  were  right  in  sub=- 
stance;  they  say  that  we  did  not  adopt  the  proper  form  of  proceeding. 
This  objection  makes  it  necessary  that  I  should  say  something  in  regard 
to  matters  of  form;  that  the  inquiry  should  be  instituted  whether  the  As- 
sembly was  boimd  to  adapt  its  measures  to  those  forms  of  process  which 
the  Constitution  prescribes  to  the  several  church  judicatories. 

Court  adjourned. 

FRIDAY  MORNING,  April  26th— 10  o'clock. 

I  suppose,  may  it  please  your  Honours — beginning  where  I  left  off — 
that  in  order  to  establish  the  ground  on  which  our  case,  so  far  as  regards 
the  proceedings  of  1837,  depends,  two  things  must  be  considered — First, 
the  substance  of  what  was  done,  which  I  have  already  examined  to  some 
extent;  and,  secondly,  the  form  adopted  by  the  Assembly  in  repealing 
the  "Plan  of  Union"  and  passing  the  acts  of  excision.  I  begin  now 
with  the  latter  point — the  form  of  these  proceedings.  Here  I  under- 
stand the  argument  on  the  other  side  to  be,  that  the  General  Assembly 
departed  from  its  own  established  course  of  action,  disregarding  the  forms 
of  process  prescribed  in  the  Constitution.     This  argument  seems  to  admit 


556 


PRESBYTERIAN  CHURCH  CASE. 


that  if  these  forms  had  been  adopted,  the  conchision,  whatever  it  had  been, 
to  which  the  Assembly  might  have  arrived,  must  have  been  received  as 
unexceptionable,  as  of  binding  authority  throughout  the  limits  of  the 
Church.  That  admission  is  an  admission  of  our  jurisdiction  over  the  sub- 
ject matter;  my  first  object,  therefore,  is  to  show,  as  by  established  prin- 
ciples it  certainly  can  be  shown,  that  the  course  of  proceeding  which  we 
adopted  was  correct;  or  rather  that  the  Assembly  may,  in  all  cases  within 
the  proper  sphere  of  its  jurisdiction,  determine  for  itself  the  form  in  which 
its  power  shall  be  exercised, 

I  contend  that  if  the  decision  of  the  judicatory,  arrived  at  and  pro- 
nounced in  any  mode,  would  be  conclusive,  an  examination,  in  this  Court, 
of  the  steps  by  which  such  a  decision  has  been  reached  is  out  of  the  ques- 
tion. Let  us  see  whether  this  position  be  not  correct.  On  what  grounds 
do  the  allegations  of  the  other  side  rest?  I  have  not  yet  heard  any  asser- 
tion, that  the  Constitution  of  the  Church,  in  which  certain  forms  of 
process  are  provided,  denies  the  right  of  proceeding  in  any  other  way. 
What  regular  process  is,  must  be  decided  by  the  judicatories  of  the  Church 
themselves.  If  any  necessary  form  has  been  omitted  by  an  inferior  tri- 
bunal, an  appeal  may  be  taken  from  it  to  the  next  higher  court,  and  from 
this  to  the  next  above;  but  when  you  have  reached  the  highest  there  can 
be  no  farther  appeal.  The  opinion  of  the  Supreme  Court  of  Delaware  is 
decisive,  that  the  judgment  of  an  ecclesiastical  judicatory  is  not  examinable 
in  a  civil  court.  Suppose  you  complain  in  an  upper  judicatory,  that 
an  established  course  of  proceeding  has  not  been  observed  in  a  lower  one, 
and  it  is  decided  that  the  alleged  error  below  is  of  no  consequence.  Is  it 
pretended  that  because  it  is  so  decided  the  decision  is  void;  that  the  ques- 
tion may  be  submitted  to  a  civil  investigation,  because  the  appellate  tri- 
bunal has  adjudged  it  in  a  particular  way  ?  Suppose  you  carry  the 
complaint  on  to  the  final  resort,  and  the  objection  is  there  overruled  by  the 
General  Assembly  itself,  in  a  case  precisely  within  the  rules  which  pre- 
scribe certain  forms  of  proceeding.  Can  the  judgm.ent  of  any  one  of 
these  judicatories,  affirmed  upon  an  appeal,  be  examined  and  set  aside  by 
a  temporal  court  ?  If  that  of  the  lowest  may  not,  why  should  that  of  the 
highest  ?  And  if  you  cannot  examine  into  the  decision  of  an  appeal,  by 
the  highest  spiritual  tribunal,  it  is  impossible  to  understand  why  you  may 
enter  into  such  an  examination  of  an  original  judgment  in  the  same  highest 
judicatory.  In  truth,  if  the  jurisdiction  of  the  court  in  this  case  be 
established,  every  part  of  the  proceedings  of  all  the  judicatories  of  the 
Church,  from  the  lowest  to  the  highest,  and  whether  acting  as  original  or 
appellate  tribunals,  must  be  subject  to  the  same  species  of  review. 

If  such  an  examination  is  to  be  allowed  here,  the  first  question  which 
arises  is,  was  it  the  intention  of  those  who  framed  the  forms  of  proceed- 
ing which  the  Constitution  of  the  Church  prescribes,  that  they  should  be 
applied  to  such  cases  as  the  present?  I  submit  that  this  was  not  their 
intention.  I  consider  the  whole  of  that  part  of  the  Constitution,  as  apply- 
ing merely  to  a  strictly  judicial  function,  where  there  are  specific  charges 
of  such  a  character,  as  to  come  under  the  cognizance  of  a  spiritual  court 
of  justice.  The  forms  there  laid  down,  are  adapted  only  to  criminal  pro- 
ceedings, charges  of  delinquency,  offences  which  make  the  offender  liable 
to  punishment — to  admonition,  censure,  or  expulsion.  But  the  act  of 
abrogation  and  the  exscinding  resolutions,  while  they  state  that  irregn- 


MR.  SERGEANT'S  ARGUMENT.  557 

larities  had  occurred,  inconsistent  with  those  laws  which  the  Assembly 
was  bound  to  enforce,  do  not  allege  any  individual  or  criminal  miscon- 
duct, but  impute  all  the  fault  to  the  "  Plan  of  Union"  itself.  Instead  of 
laying  the  blame  upon  their  adversaries  alone,  the  Old-school  charge  both 
sides  with  disorders,  that  were  owing  to  the  act  of  ISOl,  in  which  they 
had  mutually  concurred.  Censure  is  cast  as  much  upon  the  General 
Assembly,  as  upon  the  Association  of  Connecticut,  and  the  Synods  formed 
under  that  act.  Was  there  any  criminal  charge  made  against  the  other 
side?  Where  can  you  show  this,  in  either  the  resolution  abrogating  the 
"  Plan  of  Union,"  or  the  resolutions  by  which  the  abrogation  was  car- 
ried out  to  its  legitimate  consequences?  There  was  no  such  censure  pro- 
nounced upon  those  connected  with  the  four  Synods,  as  a  judicial  sentence 
involves?  They  were  not  charged  with  attachment  to  the  Congregational 
form  of  government,  as  a  crime.  And,  besides,  they  were  immediately 
afterwards  assured,  that  no  offence  was  imputed;  that  it  was  not  intended 
to  fasten  upon  them  any  stigma  or  reproach;  for  they  were  invited  to 
come  bacE,  to  prove  not  their  innocence,  but  their  Presbyterianism,  with 
the  promise  that  whenever  satisfactory  proof  upon  that  point  had  been 
given,  their  connexion  with  the  Church  should  be  restored.  Nay,  still 
more,  to  facilitate  their  return,  they  were  told  to  apply  for  admission  to 
the  nearest  and  most  convenient  Presbyteries,  Each  individual  and 
church  was  told,  "We  do  not  charge  you  with  any  crime,  we  do  not 
say  that  you  are  unfit  to  associate  with  us:  we  say,  on  the  contrary,  that 
you  are  fit,  if  you  are  Presbyterians.  Go  to  the  nearest,  most  convenient 
Presbytery,  and  prove  your  orthodoxy."  I  take  it,  that  this  was  not  a 
criminal  proceeding  at  all.  The  exscinding  resolutions  profess  to  be, 
what  I  suppose  those  who  passed  them,  understood  that  they  were,  the 
only  legitimate  and  necessary  consequences  of  the  resolution  abrogating 
the  "Plan  of  Union." 

In  the  next  place,  what  was  the  whole  effect  of  these  exscinding  reso- 
lutions, as  they  are  commonly  called  ?  Did  they  impose  a  penalty  upon 
any  individual,  or  collection  of  individuals  ?  They  merely  dissolved  the 
connexion  of  four  Synods  with  the  General  Assembly,  but  not  for  con- 
tumacy, not  for  any  crime  alleged  against  them.  All  that  the  resolutions 
proposed  was  to  abandon  them,  for  the  good  of  that  Church,  under  the 
protection  of  which  they  had  thus  far  grown  and  flourished.  The  inves- 
tigation had  proceeded  on  general  grounds,  without  doing  any  prejudice 
to  personal  character.  Not  a  reproachful  word  was  uttered  against  the 
members  of  the  four  Synods,  unless  it  was  a  reproach  to  say  that  they 
were  Congregationalists.  I  do  not  hold  that  to  be  a  reproach.  If  the 
Assembly  had  a  right  to  cut  them  off  from  the  Presbyterian  Church 
because  they  preferred  another  form  of  government  and  worship,  it  had  no 
right  to  censure  them  for  this  preference.  If  being  members  of  the 
Church,  and  professing  Presbyterianism,  their  belief  and  practice  had 
been  inconsistent  with  the  doctrine  and  laws  of  the  Church,  they  might 
have  been  brought  to  trial;  but  if  the  Synods  were  formed  under  the 
plan  of  1801,  and  that  plan  was  so  vicious  as  to  render  the  connexion 
repugnant  and  detrimental  to  the  Church — this  in  the  estimation  of  the 
Assembly,  for  I  do  not  myself  say  any  thing  now  about  the  plan,  or  the 
formation  of  the  four  Synods — this  might  be  and  was  a  good  reason  for 


558  PRESBYTERIAN  CHURCH  CASE. 

separating  them,  but  certainly  was  no  reason  for  pronouncing  a  judicial 
sentence,  or  imputing  crime. 

The  resolution  then  of  Mp.  Jessup  [Jlnte,  p.  45,)  was  by  no  means 
applicable  to  the  case. 

Mr.  Randall.  I  beg  leave  to  set  the  counsel  right  as  to  one  matter 
of  fact.  The  Assembly  charged  gross  disorders  upon  the  members  of  the 
four  Synods. 

Mr.  Sergeant.  What  ?  Charged  them  with  disorders  arising  out  of 
the  plan  of  1801,  as  a  crime,  when  the  Assembly  itself  had  given  a  license 
to  these  disorders  by  adopting  the  "  Plan"?  Those  who  had  entered  the 
Church  under  the  •'  Plan  of  Union"  came  in  by  permission:  nobody  could 
complain  of  their  entrance.  The  Assembly  had  no  right  to  make  a 
criminal  charge  against  them.  Suppose  they  had  made  such  a  charge 
before  the  "  Plan"  had  been  repealed,  stigmatizing  as  a  crime  what  that 
plan  allowed  — 

Mr.  Hubhell.    Mr.  Randall  is  I  think  mistaken.    This  is  the  resolution: 

Mr.  Hubbeil  read  the  resolution  No.  1 — Ante,  p.  46. 

Mr.  Randall.  I  should  like  to  put  the  counsel  right.  I  say  that  the 
General  Assembly  charged  the  Synods  with  extravagant  disorders.  The 
resolution  which  Mr.  Hubbeil  has  read  does  not  indeed  contain  such  a 
charge,  but  by  referring  to  the  second  resolution  he  will  find  what  I 
allude  to.     That  does  contain  an  accusation  of  gross  disorders. 

Mr.  Hubbeil.  You  will  find  what  you  mean  in  a  previous  resolution, 
which  provides  for  the  citation  of  inferior  judicatories.     Ante,  p.  38. 

Judge  Rogers.  The  charge  to  which  I  suppose  Mr.  Randall  refers,  is 
to  be  found  on  page  20  of  the  paper-book.      Vid.  Ante,  p.  46. 

Mr.  Randall.  The  resolution  is  as  follows: — (Here  Mr.  Randall  read 
resolution.  No.  2. — Ante,  p.  46.)  That  is  the  resolution  to  which  I  refer; 
and  I  say  that  it  does  distinctly  charge  gross  disorders,  and  make  them 
the  grounds  of  the  excision. 

Mr.  Sergeant.  May  it  please  your  Honours,  the  resolution  of  which 
I  was  speaking,  is  to  the  following  effect: 

Mr.  Sergeant  read  resolution,  No.  1. — Ante,  p.  46.  That  was  the 
exscinding  resolution.  That  was  the  act  by  which  the  four  Synods  were 
dissolved,  or  cut  off;  and  then  comes  a  statement  of  some  of  the  grounds 
on  which  the  Assembly  place  the  expediency  of  their  proceeding.  Even 
if  this  statement  were  untrue,  that  does  not  affect  the  validity  of  the 
prior  act;  if  it  was  untrue,  still  I  say  that  the  Assembly  had  a  right  to 
do  what  they  did.  The  grounds  that  in  their  estimation  supported  the 
rijiht,  they  gave  in  the  first  resolution.  Afterwards,  they  set  forth  the 
reasons  for  their  solicitude  on  the  subject,  and  urgency  for  an  immediate 
decision — not  the  grounds  of  the  act  itself — that  had  been  perfected  by 
the  first  resolution. 

Mr.  Sergeant  here  read  resolution.  No.  2. 

Now,  the  difference  between  Mr.  Randall  and  myself,  is  not  so  great 
as  he  seems  to  imagine.  I  was  speaking  of  the  so-called  act  of  excision, 
and  of  the  grounds  on  which  it  was  put,  as  a  matter  of  right,  in  the  reso- 
lution. On  the  other  hand,  what  he  brings  forward,  is  merely  an  after 
statement  of  the  motives  which  induced  the  Assembly  to  act  so  prompt- 
ly:— It  had  been  made  clear  to  them,  that  gross  disorders  prevailed  in  the 


MR.  SERGEANT'S  ARGUMENT. 


559 


four  Synods,  and  that  the  "Plan  of  Union"  itself  had  never  been  con- 
sistently carried  into  effect.  Well,  for  these  reasons,  speedy  action  had 
been  necessary  to  the  welfare  of  the  Church.  But  this  second  resolution, 
which  has  been  denominated  a  judicial  sentence,  was  of  no  force  to  sub- 
stantiate the  Assembly's  right  to  exscind:  the  whole  work  was  effected 
without  it,  and  before  it  had  been  passed.  The  latter  three  resolutions 
were  intended,  first,  to  give  reasons  why  the  Assembly  had  been  so 
prompt  in  its  action,  and  then,  in  kindness  and  charity,  to  invite  those 
individuals,  churches,  and  Presbyteries,  who,  though  strictly  Presby- 
terian, might  perhaps  have  deemed  themselves  exclr.ded  by  the  laying 
down  of  the  four  Synods,  to  come  in,  and  renew  their  connexion  with 
the  Assembly. 

.  Now,  let  us  see  what  Mr.  Jesup's  resolution  was.  (Here  Mr.  Sergeant 
read  the  preamble  and  resolution. —  yid.  JJnte,  p.  45.)  Previously,  a 
similar  mode  of  proceeding  had  been  proposed  by  a  member  of  the  Old- 
school  party.  (Mr.  Sergeant  read  the  resolutions  passed,  to  cite  inferior 
judicatories  to  the  bar  of  the  Assembly. —  Vid.  Ante,  p.  38.)  These,  you 
see,  were  not  pointed  at  any  Synod  in  particular.  The  yeas,  on  their 
passage,  were  a  hundred  and  twentj'-eight,  to  nays  a  hundred  and  twenty- 
two,  with  one  non-liquet.  Then,  on  the  back  of  this  close  division, 
come  two  protests. 

"  Mr.  Hay,  for  himself  and  others,  gave  notice  of  a  protest  against  the 
foregoing  resolutions. 

"Mr.  Cleaveland,  for  himself  and  others,  gave  notice  of  a  protest 
against  the  resolutions  adopted  on  Thursday  last,  abrogating  the  'Plan  of 
Union.' 

*'  Mr.  Breckinridge  gave  notice,  that  he  would  to-morrow  morning 
offer  a  resolution  to  appoint  a  committee,  to  consist  of  equal  numbers  from 
the  majority  and  minority  on  the  vote  to  cite  inferior  judicatories,  to 
inquire  into  the  expediency  of  a  voluntary  division  of  the  Presbyterian 
Church."     Then  the  committee  was  appointed. 

Now,  may  it  please  your  Honours,  I  have  stated  the  nature  of  the  act 
of  excision,  and  the  Assembly's  grounds  for  that  act.  Suppose  the 
As.sembly  entertained  the  opinion  expressed  in  the  second  resolution, 
which  from  the  beginning  I  had  intended  to  notice,  and  now  take  up,  as 
well  for  my  original  reasons,  as  on  account  of  the  construction  put  upon 
it  by  Mr.  Randall.  Suppose  it  had  been  made  clear  to  the  Assembly 
that  disorders  and  irregularities  prevailed  in  the  four  Synods,  which  were 
a  proper  subject  for  the  application  of  the  process  provided  in  the  Con- 
stitution; which  would  have  justified  a  criminal  charge,  and  a  citation  to 
the  bar  of  the  Assembly  for  trial.  Then  there  were  two  grounds  of  pro- 
ceeding against  the  Synods: — First,  the  unavoidable  consequences  of  the 
"  Plan  of  Union,"  and,  secondly,  the  actual  working  of  the  "  Plan"  in 
those  Synods.  A  proceeding  rested  on  one  ground  might  work  their 
dissolution,  without  the  imputation  of  any  crime;  a  proceeding  on  the 
other  ground  might  have  resulted  in  the  same  thing,  but  must  have  been 
a  criminal  proceeding.  Either  one,  independently  of  the  other,  might 
have  been  sufficient  to  blot  them  out  of  existence.  But,  the  first  ground 
being  suflBcient,  it  alone  is  taken.  Then  the  second  ground  is  exhibited, 
not  to  support  the  measure  of  excision,  but  to  show  the  importance  of 
having  acted  promptly.     I  would  call  your  attention  again  to  the  state- 


560  PRESBYTERIAN  CHURCH  CASE. 

nients  made  by  the  two  committees  of  the  majority  and  minority.  They 
both  concurred  in  the  opinion  that  a  separation  was  indispensable.  In 
accordance  with  this  view,  the  Assembly  passed  the  first  resolution — that, 
exscinding  the  Synods.  And  as  to  the  second,  though  it  alludes  to  the 
prevalence  of  disorders,  it  bears  on  nobody  in  particular,  contains  no  per- 
sonal imputation.  I  say  again  what  I  have  said  before,  that  the  Assembly 
cut  off  no  Presbytery,  Church,  or  individual,  strictly  Presbyterian — the 
fourth  resolution  saves  them  all.  And,  moreover,  I  say — though  perhaps 
I  am  not  a  competent  judge  of  such  matters — that,  having  listened  atten- 
tively to  all  that  has  been  said  by  the  opposite  counsel,  and  having 
listened  attentively  to  his  Honour's  charge,  I  have  heard  nothing  which 
has  persuaded  me  that  the  course  pursued  by  the  Assembly  was  not  the 
most  tender,  the  most  careful,  the  most  in  accordance  with  the  spirit  of 
their  institutions,  and  the  least  liable  to  reproach  of  any  that  could  have 
been  adopted.  The  measure  was  necessary  to  preserve  the  peace  of  the 
General  Assembly.  Without  intending  the  disparagement  of  one  party 
more  than  the  other,  and  hoping  that  the  remark  will  be  taken  in  its 
mildest  sense,  I  must  say  that  into  the  Assembly  had  already  been  intro- 
duced a  system  of  tactics,  more  like  the  hostility  of  contending  political 
parties,  than  the  deliberations  becoming  a  solemn  council  of  the  Church; 
and  that  peace  required  the  two  parties  to  be  put  asunder  at  least  for  a 
time. 

But,  again,  the  proceedings  of  the  Assembly  were  against  ecclesias- 
tical bodies,  not  against  individuals.  Here  I  shall  not  repeat  the  argu- 
ment of  my  colleague:  a  short  statement  of  it  will  be  sufficient.  What 
bodies  were  they?  They  were  Synods.  Established  by  whom?  By  the 
General  Assembly:  they  were  bodies  of  its  own  creation.  Nobody  ques- 
tions the  right  of  the  Assembly  to  establish  Synods;  and  my  colleague's 
argument  has  shown,  manifestly,  that  as  sure  as  they  have  the  power  to 
establish,  so  sure  they  have  the  power  to  lay  down;  that  if  they  can 
create,  they  also  can  destroy.  What  answer  is  made  to  this,  on  the  other 
side?  The  counsel  do  not  deny  the  right  to  dissolve  a  Synod.  If  I  have 
misunderstood  their  argument,  I  shall  not  find  fault  with  their  correcting 
me.  This  is  a  question  of  too  much  importance  to  be  decided  without  a 
clear  comprehension  of  its  merits:  every  member  of  the  society  must 
wish  that  it  should  be  rightly  decided.  I  do  not  understand  them  to  deny 
the  power  of  the  Assembly  to  dissolve  a  Synod,  unless — as  Mr,  Randall 
qualifies  the  admission — rights  have  intermediately  become  vested.  If  no 
such  rights  have  become  vested,  he  agrees  that  a  court  cannot  look  into 
an  act  of  dissolution. 

Mr.  Randall.  I  made  another  qualification,  and  now  accept  Mr.  Ser- 
geant's invitation,  to  remind  him  of  it.  Whether  the  Assembly  can  dis- 
solve a  Presbytery  or  Synod,  in  any  case,  is  a  vexed  question;  but  it 
certainly  has  no  power  to  do  so,  in  the  two  cases  which  I  before  mentioned. 
First,  where  intermediate  rights  have  become  vested,  and,  secondly, 
where  the  consequences  of  the  dissolution  must  be  a  suspension  of  the 
ecclesiastical  privileges  of  individuals,  no  matter  whether  for  a  day  only, 
or  for  a  month,  or  a  year.  In  the  present  case,  it  might  perhaps  have 
required  eighteen  months  for  some  to  regain  their  ecclesiastical  rights. 
They  are  all  to  be  re-admitted,  as  if  they  were  foreigners;  and  this  would 
take  time,  while  tiic  suspension  operated  instantly. 


MR.  SERGEANT'S  ARGUMENT.  5g| 

Mr.  Sergeant.  I  think  I  should  have  satisfied  the  learned  counsel, 
that  I  did  not  intend  to  overlook  the  latter  part  of  his  qualification.  His 
first  position  is,  that  the  Assembly  has  not  the  power,  where  intermediate 
rights  have  become- vested;  and,  in  the  second  place,  lie  merely  defines 
what  sort  of  rights  are  intended.  I  take  it,  then,  as  a  conceded  point, 
that  the  Assembly  has,  in  some  cases,  the  right  to  lay  down  a  Synod — as 
to  the  case  of  a  Presbytery — that,  at  present,  I  do  not  toucli.  It  appears, 
indeed,  that  a  Presbytery  lias  been  dissolved,  here  in  Philadelphia;  and 
about  the  power,  in  that  case,  there  seems  to  be  no  dispute,  though  there 
has  been  some  conversation  respecting  it  at  the  bar.  The  Assembly  has 
the  power,  unless  intermediate  rights  have  become  vested,  or,  as  JMr.  Ran- 
dall says,  unless  the  dissolution  would  suspend  ecclesiastical  privileges. 
What  rights  are  vested  in  a  Synod?  He  tells  us,  certain  ecclesiastical 
privileges;  and  that  if  these  should  be  taken  away  or  suspended  by  the 
dissolution,  it  would  be  void.  The  rights  of  which  he  speaks,  are  only 
ecclesiastical  rights.  No  Synod  can  be  established  with  any  other.  A 
Synod  is  but  a  link  in  the  chain  of  connexion  which  the  form  of  govern- 
.ment  establishes,  for  purposes  purely  ecclesiastical;  it  has  no  right  of 
representation  in  the  Assembly,  and  no  control  over  the  corporation. 
Whatever  is  done  by  the  formation  of  a  Synod,  is  undone  by  its  dissolu- 
tion :  nothing  more  can  be  undone,  than  that  which  has  been  done.  But,  we 
are  told,  that  if  ecclesiastical  privileges  have  been  conferred  by  the  estab- 
lishment of  a  S3mod,  the  Assembly  has  no  right  to  lay  it  down,  because 
it  would  thus  be  deprived  of  those  privileges?  What  are  ecclesiastical 
privileges?  The  basis  of  every  church  connexion,  is  free  and  voluntary 
association.  No  one  has  the  right  of  coming  into  the  Church,  who  is  not 
voluntarily  admitted;  no  one  who  does  not  belong  to  it,  can  enjoy  its 
privileges;  and  he  ceases  to  enjoy  them,  who  leaves  its  communion.  The 
ecclesiastical  rights  with  which  a  Synod  is  invested,  are  but  a  portion  of 
that  spiritual  and  moral  power  which  belongs  to  the  Assembly.  These 
are  the  rights  intermediately  vested,  of  which  the  learned  counsel  speaks; 
and  it  so  happens,  that  they  are  the  very  rights  which  cannot  be  affected 
by  a  civil  process:  I  deny  that  this  tribunal  has  any  power  to  meddle 
Avith,  or  to  take  cognizance  of  them.  The  plain  English  of  Mr.  Ran- 
dall's qualification  of  the  Assembly's  power,  clearly  is,  that  when  that 
body  has  once  created  a  Synod,  it  cannot  lay  it  down,  unless  by  a  regular 
trial,  condemnation,  and  sentence.  Does  any  policy  of  the  state  require 
such  a  regulation  as  this?  Is  the  law  of  Pennsylvania  such  as  the  learned 
counsel  says?  It  cannot  be.  If  the  legislature  should  assume  the  power 
to  tell  the  General  Assembly,  that  they  should  not  lay  down  a  S^'^nod, 
any  citizen,  lawyer  or  not,  who  looked  at  the  third  section  of  the  Bill  of 
Rights,  might  see  that  the  Assembly  could  bid  defiance  to  the  legislature. 
They  would  have  a  right  to  do  so,  according  to  the  plainest  principles  of 
the  Constitution.  Well,  if  the  legislature  cannot  pass  such  a  law,  where 
will  you  look  for  an  authority  for  the  principle  urged  upon  the  other  side? 
Not  to  the  common  law,  because  it  is  applicable  in  Pennsylvania,  only  so 
far  as  consistent  with  our  Constitution  and  statutes.  Those  portions  of  it 
which  are  repugnant  to  the  Constitution,  are  deemed  of  no  authority.  If 
in  the  common  law,  there  were  any  such  principle,  it  would  not  be  appli- 
cable here.  The  answer  we  have  to  give  to  any  one  claiming  protection 
here,  for  his  asserted  vested  ecclesiastical  rights,  is  that  given  by  the 

71 


562  PRESBYTERIAN  CHURCH  CASE. 

Supreme  Court  of  Delaware — "We  do  not  know  you."  I  speak  not  as 
an  individual.  Of  course,  I  may  have  a  private  opinion.  But  I  do  not 
mean  to  speak  of  my  opinion:  that  is  not  the  point.  The  true  (juestion 
is,  whether  this  court  has  a  right  to  sit  in  judgment  upon  such  a  case;  to 
weigh  the  value  of  ecclesiastical  privileges;  to  decide  that  certain  persons 
must,  or  must  not,  continue  members  of  a  voluntary  and  spiritual  associa- 
tion. Mr.  Randall  has  put  the  very  case,  in  which  the  judgment  of  a 
spiritual  court  is  alone  competent  to  weigh  considerations  of  this  nature. 
If  this  court  can  decide  that  a  Synod  cannot  be  laid  down,  because  inter- 
mediate rights  have  become  vested,  it  ought, to  prescribe  some  mode  in 
which  the  Church  may  be  purged.  There  is,  at  last,  nothing  intelligible 
to  the  law,  in  the  limitation  thus  attempted  to  the  power  of  the  Assembly. 
There  are  no  such  rights,  cognizable  by  the  Civil  Power:  they  are  not 
civil  rights. 

Is  it  meant  that  these  men  suffer  in  the  estimation  of  a  part  of  the  Church 
by  being  excluded?  Is  it  said  that  these  five  hundred  and  ninety-nine  cler- 
gymen have  suffered  in  their  feelings?  The  Court  cannot  take  cognizance 
of  such  injuries.  Suppose  a  man  is  excluded  from  a  temperance  society 
which  is  not  incorporated.  That  may  be  a  very  great  injury  to  him.  Sup- 
pose that  a  man,  woman,  or  child,  is  turned  out  of  any  voluntary  society, 
the  injury  may  be  incalculable — it  may  be  ruinous.  He  may  be  "  cut 
dead,"  as  the  phrase  is  ;  but  has  a  civil  court  jurisdiction  in  this  case  ? 
Does  the  law  provide  a  remedy?  No.  Why  not?  Because  it  has  not  been 
thought  fit  that  the  courts  should  exercise  such  a  power;  that  they  should 
be  able  to  restore  an  individual  excluded  from  a  mere  voluntary  associa- 
tion. And  why  have  they  not  the  power  as  regards  the  Church  ?  Be- 
cause that  is  a  voluntary  association,  into  which  all  are  invited,  but  none 
forced  to  come  or  to  remain.  None  are  excluded  from  it  excepting  when 
in  the  judgment  of  those  who  alone  are  competent  to  decide  in  such  mat- 
ters, there  are  grounds  sufficient  for  the  exclusion.  For  be  it  remember- 
ed, the  union  is  voluntary  on  both  sides.  There  is  little  danger  of  any 
one's  being  excluded  without  cause.  Indeed,  the  tendency  is  to  the  oppo- 
site extreme.  It  is  often  said  that  the  disposition  of  every  Church  is  to 
extend  its  bounds  as  much  as  possible  by  proselyting — perhaps  too  much 
has  been  said  about  a  proselyting  spirit.  But  certain  it  is  that  the  natural 
tendency  is  always  against  exclusion.  Why,  even  here  the  majority  are 
charged  by  the  minority  with  entertaining  plans  for  aggrandizing  and 
spreading  their  influence  and  sway,  as  the  power  of  Rome  once  did,  until 
it  reigned  supreme  over  the  whole  Christian  world.  A  disposition  to  cut 
off  its  members  has  never  before  been  ascribed  to  any  Church  :  it  is  very 
improbable  that  such  a  disposition  exists  here. 

We  offered  to  prove  at  the  trial,  that  within  the  bounds  of  the  four 
Synods  there  were  numerous  Congregational  churches.  To  what  extent 
we  could  have  made  out  the  allegation  I  cannot  pretend  to  say.  It  has 
been  stated  at  the  bar,  and  we  have  a  glimpse  of  the  fact  in  the  evidence, 
that  in  the  Synod  of  the  Western  Reserve  alone,  out  of  one  hundred  and 
thirty-nine  churches,  there  were  but  nine  Presbyterian.  We  might  have 
followed  up  this  testimony  by  proof  of  not  only  the  number  of  these 
churches  in  the  other  Synods,  but  also  of  the  persons  who  had  represent- 
ed them  in  the  several  judicatories,  until  we  came  to  the  case  of  Mr.  Bis- 
sell,  who  was  not  even  a  committee-man,  and  yet  was  allowed  to  sit  in 


MR.  SERGEANT'S  ARGUMENT.  5(33 

the  General  Assembly.  But  his  Honour  would  not  receive  such  festi- 
mony.  He  thought  there  was  another  mode  in  which  the  question  might 
be  disposed  of.  But  unless  the  General  Assembly  is  left  free  to  decide 
what  infusion  of  Congregationalism  is  consistent  with  the  purity  of  the 
Church,  somebody  else  must  decide  the  question.  Suppose,  I  say,  that 
its  purity  is  destroyed  by  the  existence  of  two  Congregational  churches, 
or  one  among  a  hundred  and  thirty-nine.  Some  one  rises  and  advances 
a  contrary  opinion,  and  is  listened  to  with  great  respect,  as  is  usual;  but 
the  Assembly  thinks  he  has  not  answered  my  argument,  and  decides  that 
my  opinion  is  correct.  Do  you  think  it  competent  to  another  tribunal — 
a  civil  court — to  set  aside  this  judgment,  and  to  sa)^,  "Surely  one  Congre- 
gational church  cannot  poison  and  corrupt  a  whole  Synod?"  Where  then 
.is  the  .freedom  of  the  Church?  They  decide  according  to  the  knowledge 
which  they  have,  and  their  own  feelings,  and  the  decision  must  be  final, 
or  they  might  as  well  pronounce  no  judgment  at  all.  Look  at  page  11  of 
the  paper-book,  ( Vicl.  ante  p.  27,)  and  there  I  think  you  will  find 
some  tolerable  foundation  for  the  fears  entertained  by  the  Assembly  upon 
this  point,  if  not  already  convinced  that  they  were  reasonable.  There  is 
to  be  seen  a  report  of  the  Synod  of  the  Western  Reserve  to  the  Assembly 
of  1S33,  in  the  shape  of  a  series  of  resolutions.  The  second  of  these  is 
as  follows  : 

"  That  in  relation  to  the  remaining  allegation,  viz,  on  the  subject  of 
ruling  elders,  the  Synod  do  not  discover  any  reason  for  the  charge  of  hav- 
ing violated  the  constitution  of  the  Church,  inasmuch  as  that  constitution 
does  not  make  the  eldership  essential  to  the  existence  of  a  church,  and  as 
the  number  of  persons  in  many  churches  is  too  small  to  admit  the  elec- 
tion of  suitable  persons  to  fill  that  office,  and  where  this  is  not  the  case, 
the  fact  of  their  being  Congregationalists  mingled  with  Presbyterians  in 
many  churches,  is  a  sufficient  reason  for  the  non-existence  of  the  elder- 
ship, according  to  the  plan  of  agreement  between  the  General  Assembly, 
and  the  General  Association  of  Connecticut;  from  the  spirit  of  which,  the 
Synod  believe,  that  none  of  our  Presbyteries  have  departed." 

That  is  the  language  of  the  Synod  of  the  Western  Reserve.  Will  any 
one  tell  me  that  there  are  not  vital  matters  at  issue  between  these  two 
parties,  when  one  of  the  exscinded  Synods  deliberately,  and  as  a  solemn 
decison  of  the  whole  judicatory,  pronounced  that  the  Constitution  did  not 
make  the  office  of  ruling  elder  essential  to  the  existence  of  a  Presbyterian 
Church  ?  Suppose  the  Assembly  to  decide  otherwise:  who  is  to  correct 
their  judgment  ?  That  they  do  hold  the  office  of  ruling  elder  to  be 
essential,  scarcely  requires  proof.  I  will  refer  however  to  their  opinion 
pronounced  on  this  occasion, 

"  The  report  of  the  committee  to  examine  the  records  of  the  Synod  of 
the  Western  Reserve,  which  was  laid  on  the  table,  was  taken  up,  and 
adopted,  and  is  as  follows,  viz. :  That  the  records  be  approved,  with  the 
exception  of  the  sentiment  on  page  154,  viz.,  that  the  eldership  is  not 
essential  to  the  Presbyterian  Church.  In  the  opinion  of  the  committee, 
the  Synod  advance  a  sentiment  that  contravenes  the  principles  recognised 
inourFormof  Government,  Chap.  H.  Sec.  4.  Chap.  HI.  Sec.  5.  Chap  V. 
Chap.  IX.  Sec.  1,2." 

Your  Honours  will  find  in  the  evidence  of  Mr.  Squier  {ante,  p.  71.) 
which  was  read  by  my  colleague,  an  admission  that  lay  members  have 


504  PRESBYTERIAN  CHURCH  CASE. 

sat  in  Presbytery  as  the  representatives  of  churches  having  no  elderships. 

"Several  years  ago,  I  belonged  to  the  Presbytery  of  Buffalo:  there 
were  then  some  churches  connected  with  that  Presbytery,  that  had  not 
appointed  ruling  elders,  I  am  unable  to  say  how  many.  This  Presby- 
tery now  belongs  to  the  Synod  of  Genesee.  They  were  the  fewer  in 
number,  and  the  smaller  churches,  I  should  say.  Churches,  when  first 
formed  in  a  new  country,  are  very  small,  and  have  few  male  members, 
hardly  enough  for  the  formation  of  an  eldership;  and  in  some  instances 
the  appointment  of  elders  was  delayed.  In  the  mean  time  such  a  church 
was  represented  in  the  Presbytery." 

Mr.  Randall.  Represented  by  ministers — the  Presbyterian  ministers 
who  preached  to  them,  Mr.  Squier  meant. 

Mr.  Sergeant.  He  certainly  knew  what  the  examination  was  about; 
and,  besides,  he  says  that  the  churches  of  which  he  speaks  had  scarcely 
male  members  enough  for  the  formation  of  elderships,  and  therefore  did 
not  choose  elders;  but  were  governed  by  their  male  members.  Well,  he 
was  asked  whether  these  churches  did  or  did  not  send  representatives  to 
the  Presbytery,  and  answered,  "  Yes."  Of  course  he  meant  lay  repre- 
sentatives. He  did  not  indeed  admit  that  this  was  in  fact  practised  exten- 
tensively.  I  have  already  shown  that  in  one  instance,  an  individual  who 
was  not  even  a  committee-man  was  admitted  to  a  seat  in  the  Assembly. 
This  was  Mr.  Bissell.  And  there  was  a  protest  against  his  admission 
signed  by  a  number  of  persons — among  others  by  Mr.  Gilbert  who  was 
examined  at  the  trial,  and  who,  though  I  don't  know  him  personally,  is, 
I  take  for  granted,  from  the  station  which  he  occupies,  a  very  respectable 
man.  Here  then  is  evidence  enough  of  the  existence  of  two  evils.  First, 
a  disregard  of  essential  Presbyterian  principles,  becoming  gradually 
bolder,  until  at  length  embodied  in  the  formal  resolutions  of  a  Synod. 
Then,  in  another  case,  the  "Plan  of  Union"  affording  a  disguise  under 
which  Congregationalists  exerted  an  influence,  by  representation,  not  only 
in  the  Presbytery,  but  even  through  to  the  General  Assembly,  the  true 
origin  of  the  evil  not  being  ascertained.  And  here  I  take  occasion  to  say, 
as  to  Charleston  Union  Presbytery,  that  there  is  no  such  thing  there,  as 
the  disorder  which  we  have  sought  to  correct.  Those  churches  within 
the  bounds  of  that  Presbytery  which  are  not  Presbyterian,  though  they 
have  settled  Presbyterian  pastors,  are  marked  in  the  statistical  table  as 
Congregational.  Here  there  is  no  admixture  of  the  two  sects.  These 
churches  claim  the  right  of  being  independent — nothing  more.  They 
have  no  representation  in  any  Presbyterian  judicatory.  But  in  the  other 
case  there  was  an  intermixture,  though  so  disguised  that  it  could  not  be 
traced  or  detected. 

But,  may  it  please  your  Honours,  I  contend  farther,  that  the  exscinding 
resolutions  were  the  legitimate  application  of  the  act  by  which  the  "  Plan 
of  Union"  had  been  abrogated.  His  Honour,  Judge  Rogers,  decided 
that  the  abrogation  was  within  the  power  of  the  Assembly.  It  follows 
then  of  course  that  the  Plan  was  no  part  of  the  Constitution  of  the 
Church  :  indeed  his  Honour  maintains  in  his  charge  that  it  was  not. 
What  was  it  then  ?  If  not  a  constitutional  rule,  the  act  by  which  it  was 
passed  was  an  exercise  of  the  ordinary  jurisdiction  of  the  Assembly; 
and  the  abrogation  of  it  was  a  like  exercise  of  ordinary  power,  and  not  a 
criminal  proceeding.     Then  follow  out  the  abrogation  of  the  "Plan": 


MR.  SERGEANT'S  ARGUMENT. 


565 


what  was  to  become  of  those  who  came  hi  under  its  operation  ?  They  did 
not  come  in  under  the  Constitution,  and  therefore  they  had  no  constitu- 
tional rights.  I  do  not  mean  to  say  that  if  they  had  come  in  under  the 
Constitution  they  might  not  have  been  exscinded;  but  they  did  not  come 
in  under  it,  and  therefore  coukl  have  no  constitutional  rights.  They  had 
rights  arising  only  from  an  exercise  of  the  Assembly's  ordinary  jurisdic- 
tion. I  have  heretofore  contended  that  the  Assembly  had  not  the  power 
to  pass  the  "Plan  of  Union" — that  it  was  inconsistent  with  the  Constitu- 
tion. But  take  it  that  they  had — then  it  was  simply  no  part  of  the  Con- 
stitution. Those  who  derived  their  ecclesiastical  rights  from  it,  as  the 
four  Synods  were  alleged  to  have  done  by  the  General  Assembly,  did 
not  derive  them  from  the  Constitution,  but  from  an  ordinary  act  of  the 
.  Assembly — whether  strictly  a  legislative  act,  or  not,  it  is  not  necessary  to 
say.  The  Constitution  then  is  not  applicable  to  the  case — only  the  "Plan 
of  Union."  Will  your  Honours  say  that  the  abrogation  was  unconstitu- 
tional. His  Honour,  Judge  Rogers  has  decided  that  it  was  not ;  that  the 
''Plan"  was  no  part  of  the  Constitution.  How  then  can  the  laying  down 
of  these  Synods  interfere  with  the  Constitution  ?  Did  they  derive  their 
rights  from  it  ?  No.  If  you  admit  that  the  "  Plan  of  Union"  wjs  incon- 
sistent with  the  Constitution  it  was  void  ;  but  if  its  establishment  was 
within  the  powers  of  the  Assembly,  if  it  was  an  ordinary  act  of  that  body, 
it  follows  of  course,  that  what  they  did  might  be  undone  whenever  they 
pleased.  And  as  to  those  who  had  intermediately  entered  into  ecclesias- 
tical relations  under  its  auspices — I  have  shown  that  they  had  no  vested 
rights  of  which  the  law  could  take  cognizance.  Your  Honours  will 
answer  whether  you  have  not  always  understood  the  principle  of  our 
Constitution  to  be  that  every  ecclesiastical  association  is  voluntary  ;  that 
this  Church  has  been  so  from  the  beginning,  so  is,  and  must  continue  to 
be  purely  voluntary  until  it  is  dissolved.  It  appears  to  me  that  those  who 
complain  of  the  illegality  of  the  resolutions  exscinding  the  four  Synods, 
are  ignorant  of  the  fundamental  principles  of  the  Presbyterian  Church. 

I  have  detained  your  Honours  a  great  while  with  the  consideration  of 
questions  which  have  appeared  interesting.  Much  more  might  be  said 
in  regard  to  them,  but  no  doubt  you  are  weary,  and  as  other  work  remains, 
I  leave  them  with  the  observations  which  I  have  made.  I  now  come  to 
the  lighter  part  of  this  argument.  The  road  over  which  I  am  yet  to  tra- 
vel is  not,  I  think,  so  difficult  for  us,  perhaps  not  so  difficult  for  either 
party,  because  in  discussing  questions  of  parliamentary  order,  a  little  free- 
dom may  be  allowed,  which  would  be  entirely  unbecoming  the  greater 
topics  which  I  have  hitherto  considered.  Already  in  some  measure  have 
been  intimated  our  cardinal  objections  to  the  position  taken  on  the  other 
side;  to  the  proceedings  on  which  they  found  their  claims — proceedings 
which,  as  they  say,  resulted  in  putting  the  majority  out  of  doors.  Let  us 
trace  the  steps  of  their  course.  And  this  would  be  a  mere  game  of  push- 
pin if  it  were  not  for  the  important  consequences  that  may  follow — if  it 
might  not  result  in  overturning  the  Presbyterian  Church.  If  by  mere 
forms  can  be  accomplished  what  in  substance  is  so  grave  and  important, 
questions  of  form  are  very  serious.  The  gravity  of  the  eflfect,  of  the 
consequences,  must  in  that  case  measure  the  degree  of  consideration  which 
this  subject  is  to  receive. 

In  the  beginning  I  beg  to  remark,  that  the  Assembly  of  1838  met  at 


5(35  PRESBYTERIAN  CHURCH  CASE. 

the  proper  time  in  the  church  in  Ranstead  Court — the  time  and  place 
appointed.  It  was  a  new  ParHament — if  indeed  there  is  any  thing  strictly 
analogous  in  the  case  of  the  two  bodies — not  merely  a  new  session.  The 
old  Assembly  had  been  dissolved,  and  a  new  one,  like  a  new  Parliament, 
summoned.  The  antecedent  body,  according  to  the  usual  form,  pre- 
scribed in  the  Constitution,  had  directed  when  and  where  the  next  should 
meet,  and  who  should  act  and  what  should  be  done  up  to  a  certain  point. 
There  is  the  ship  lying  off  from  the  shore  ;  but  you  cannot  get  to  her 
without  a  boat ;  and  it  is  necessary  that  a  pilot  should  be  at  hand  to  carry 
you  out.  We  will  provide  for  you  the  boat  and  the  pilot:  after  you  are 
fairly  on  the  great  ocean,  the  pilot  may  leave  you,  but  till  then  has  you  in 
charge.  But  this  New-school  party  say,  that  it  will  not  do  to  take  the 
boat  that  has  been  provided,  and  wish  to  board  the  ship  just  when,  and 
where,  and  how  they  please;  or,  having  taken  the  boat,  they  wish  to  throw 
the  pilot  overboard,  and  the  oarsmen  overboard  too.  They  are  deter- 
mined to  possess  themselves  of  the  vessel  on  their  own  terms,  and  at  their 
own  time.  That  is  about  the  amount  of  what  the  New-school  wished 
and  endeavoured  to  do,  as  exhibited  by  such  an  illustration.  I  suppose 
that  the  regulation  of  this  matter,  under  the  Constitution,  belongs  of  right 
to  the  antecedent  Assembly  ;  that  they  are  to  provide  a  plan  of  proceed- 
ing up  to  a  certain  point.  There  can  be  no  more  doubt  of  it  than  of  the 
fact  that,  at  the  opening  of  the  session  of  the  Congress  of  the  United 
States,  if  the  Vice  President  comes,  no  one  else  has  a  right  to  take  the 
chair  and  preside  in  the  Senate.  Nay  more,  the  Moderator  appointed  at 
the  close  of  one  Assembly,  to  preside  in  the  organization  of  the  next, 
must  preside  until  removed.  Every  deliberative  body,  unless  it  be  a 
town  meeting,  has  some  rules  provided  for  the  beginning  of  its  session. 
If  a  party  of  gentlemen  meet  together  to  dine,  there  must  be  one  to  sit  at 
the  head  of  the  table,  though  in  that  case  if  the  individual  who  first  takes 
the  place  be  turned  out,  it  is  vain  for  him  to  think  of  remaining.  There 
must  be  some  rules  to  guide  in  the  organization  of  every  assembly.  It 
is  clear  that  in  Parliament,  when  the  Speaker  is  absent,  all  questions,  such 
as  can  be  dealt  with  in  his  absence,  must  be  put  by  the  clerk,  unless  a 
speaker  pro  tempore,  be  appointed;  and  until  the  organization  of  the 
house,  the  clerk  alone  can  act.  This  rule  is  laid  down  in  all  the  manuals, 
and  its  authority  is  not  to  be  disparaged.  It  is  found  in  both  Jefferson's 
and  Sutherland's  Manuals,  and  has  been  adopted  by  the  House  of  Repre- 
sentatives as  one  of  their  rules.  In  that  house  the  clerk  puts  the  question 
in  the  absence  of  the  speaker,  or  before  the  body  is  organized.  In  the 
Senate  the  chair  is  .rarely  vacant;  but  if  it  should  be  vacant,  no  doubt  the 
parliamentary  practice  would  there  prevail.  But  when  the  chair  is  actually 
full,  no  body  but  the  person  in  the  chair  can  put  any  question,  in  either 
house  of  Congress,  in  the  House  of  Commons,  or  in  any  deliberative 
body  on  earth,  which  pretends  to  be  organized  at  all.  And  for  this  sim- 
ple reason,  that  you  cannot  confide  the  privilege  of  doing  this  to  one, 
without  giving  it  to  all.  What  is  the  advantage  of  having  a  presiding 
officer,  if  any  person  who  pleases  may  preside  ? 

Now  the  Assembly  of  1838  met  with  full  powers,  excepting  that  the 
antecedent  Assembly  had  sent  down  to  it  a  Moderator,  whom,  up  to  a  cer- 
tain period  of  their  session,  they  had  no  right  to  remove.  That  Modera- 
tor and  the  clerks  who  were  to  assist  him  in  the  organization  were  continued 


MR.  SERGEANT'S  ARGUMENT.  567 

ill  office  to  perform  certain  acts,  and  until  these  were  performed,  tiiey 
were  beyond  the  reach  of  the  new  Assembly,  or  rather  that  Assembly 
had  not  yet  acquired  the  capacity  to  touch  them  ?  First,  what  were  the 
acts  to  be  performed  by  the  clerks?  Neither  the  new  body,  nor  the 
Moderator  was  responsible  for  these  clerks.  They  had  not  appointed 
them.  What  would  be  thought  if  a  tribunal  of  Pennsylvania  were  made 
accountable  for  a  clerk  appointed  by  the  Governor?  They  did  not  appoint 
the  clerks,  and  had  no  power  for  a  certain  time  to  remove  them.  But 
even  if  they  had  that  power,  there  was  here  no  such  reason  as  has  been 
alleged  for  its  exercise.  The  conduct  of  the  clerks,  as  I  shall  contend,  was 
perfectly  correct,  and  not  open  to  objection,  unless  upon  a  principle,  which 
I  have  never  known  to  be  asserted  but  by  one  man,  the  principle  that 
every  one  is  to  construe  the  Constitution  and  laws  in  his  own  way.  I  say 
that  the  clerks  had  no  right  to  decide  on  the  constitutionality  of  the  acts 
of  1837.  At  the  time  when  the  commissioners  presented  their  commis- 
sions to  them,  there  was  no  power  on  earth  competent  to  decide  that 
matter.  Till  the  new  body  was  fully  organized,  there  was  no  power  that 
could  undo  what  those  acts  had  done.  Will  you  tell  me  that  the  clerks 
had  a  right  to  decide  on  the  constitutionality  of  the  resolutions  of  the  pre- 
vious year,  and  to  repeal  them  ?  That  the  Moderator  was  bound  to 
exercise  his  own  judgment  upon  these  acts  at  his  own  risk  ;  or  that  the 
individuals  composing  the  body  could,  before  it  was  organized,  repeal 
them?  I  contend  that  this  doctrine  is  utterly  inconsistent  with  the  rules 
of  order  and  right. 

At  present,  I  am  considering  the  conduct  of  the  clerks  only:  the  Mode- 
rator's conduct,  I  shall  examine  by-and-by.  It  is  supposed  that  the  clerks, 
by  reason  of  their  declarations  in  the  antecedent  Assembly,  and  the  Mode- 
rator, had  combined  unlawfully  to  do  a  thing  which  they  ought  not  to 
have  done.  I  put,  then,  a  simple  question  :  Here  was  a  resolution  passed 
by  the  Assembly,  still  in  full  force,  unrepealed,  by  which  the  Presby- 
teries, that  had  sent  certain  commissioners,  whose  commissions  were 
offered  to  the  clerks,  were  declared  to  be  no  part  of  the  Presbyterian 
Church:  were  the  clerks  at  liberty  to  take  any  notice  whatever  of  such 
commissions?  I  don't  know  that  any  one  has  said,  that  they  had  a  right 
to  admit  these  men  to  the  Assembly;  but  it  is  imputed  to  them,  as  an 
offence,  that  they  did  not  put  their  names  upon  the  rejected  list — the  list 
of  doubtful  cases.  To  my  mind,  the  question  as  to  this  latter  point  is 
just  as  plain,  as  the  question  of  the  right  of  the  clerks  to  admit  these  com- 
missioners directly  to  the  roll  of  the  Assembly.  The  commissions  offered, 
were  of  three  descriptions.  There  were  some  persons  who  came  from  a 
regularly  acknowledged  constituency,  with  commissions  regular  in  form. 
There  were  others  who  claimed  to  come  from  an  undisputed  constituency, 
but  whose  commissions  were  irregular,  or  defective,  or  who  presented  no 
commissions  at  all.  Then,  there  was  a  third  class — persons  who  had  no 
constituency.  The  first  sort — those  who  had  regular  commissions  from  an 
acknowledged  constituency,  were  enrolled.  The  second — those  whose  con- 
stituency was  undoubted,  but  whose  commissions  were  irregular,  defective, 
or  missing,  were  reported  on  the  rejected  list.  But,  what  was  to  be  done 
with  those  who  had  no  constituency  at  all  ?  It  is  contended,  that  they  too 
should  have  been  put  on  the  list  of  rejected  commissioners.  If  so,  the 
resolution  of  the  antecedent  Assembly  would  have  been  as  entirely  disre- 


55S  PRESBYTERIAN  CHURCH  CASE. 

garded  by  the  clerks,  as  if  they  had  pretended  to  decide  it  unconstitu- 
tional and  void.  They  might  just  as  well  have  put  on  the  rejected  list, 
the  names  of  men  offering  com'nissions  regular  in  form,  but  coming  from 
some  other  denomination,  or  from  no  denomination  at  all — from  a  body 
of  men  in  no  Church  communion.  Why  should  not  the  latter  be  put  on 
the  list?  Simply,  because  they  have  no  Presbyterian  constituency.  It 
is  contended,  then,  that  the  cleiks  should  have  done  the  same  thing,  as  if 
required  to  put  these  commissioners  on  the  list  of  undisputed  members; 
since,  to  have  put  them  on  any  list,  would  have  been  an  acknowledgment 
of  their  constituency.  They,  in  fact,  had  no  co,mmissions  at  all,  provided 
the  acts  of  1837  were  vaUd;  and  this  according  to  their  own  statements; 
for,  when  asked  where  they  were  from,  they  answered,  from  Presbyteries 
within  the  four  Synods  of  Utica,  Geneva,  Genesee,  and  the  Western  Re- 
serve, the  very  Synods  which  those  acts  had  declared  no  longer  connected 
with  the  Church.  Was  there  no  power  competent  to  give  them  redress,  if 
they  had  been  wronged  ?  Yes;  the  Assembly,  when  fully  organized,  might 
have  repealed  the  acts  of  the  former  body.  But,  in  the  meantime,  they 
require  that  the  clerks  should  repeal  it;  that  the  Moderator  should  disregard 
it.  They  certainly  had  no  power  to  repeal  it,  even  if  it  were  unconstitu- 
tional. In  the  argument  on  the  other  side,  much  has  been  said  about  the 
power  of  Moderators  and  clerks;  about  setting  servants  above  their  mas- 
ters. Apply  the  same  doctrine  in  this  case:  look  at  what  is  required  of 
these  officers,  and  say  who  would  be  the  master,  if  they  had  complied 
with  the  requisition.  If  was  impossible  that  they  should  disregard  the 
exscinding  resolutions,  because  they  were  not  the  officers  of  the  new  body, 
but  of  the  antecedent  Assembly,  continued  in  office  to  begin  the  new 
parliament.  I  say  that  the  clerk's  conduct  was  perfectly  correct;  and, 
whether  they  were  pledged  or  not,  the  Assembly  by  which  they  were 
appointed,  or  continued  in  office,  had  a  right  to  expect  them  to  obey  its 
commands. 

Then  we  come  to  the  conduct  of  the  Moderator,  Dr.  Elliott.  He  too 
had  been  appointed  by  the  antecedent  body,  and  sent  down  to  preside 
in  the  new  organization.  The  Assembly  of  1838  were  not  accountable 
for  him,  nor  he  to  them 1  mean  that  for  a  certain  time  he  was  not  ac- 
countable to  them.  The  language  of  the  rule  is,  that  the  last  Moderator 
shall  preside  until  a  new  one  is  appointed.  This  rule  has  been  read  seve- 
ral times.  Being  one  of  great  importance  it  is  laid  down  in  two  distinct 
places  in  the  Constitution.  First,  Form  of  Gov.  Chap.  XII.  Sect.  7 — 
"  The  General  Assembly  shall  meet  at  least  once  in  every  year.  On  the 
day  appointed  for  that  purpose,  the  Moderator  of  the  last  Assembly,  if 
present,  or,  in  case  of  his  absence,  some  other  minister,  shall  open  the 
meeting  with  a  sermon,  and  preside  until  a  new  Moderator  be  chosen." 
And  again.  Form  of  Gov.  Chap.  XIX.  Sect.  3—"  The  Moderator  of  the 
Presbytery  shall  be  chosen  from  year  to  year,  or  at  every  meeting  of  the 
Presbytery,  as  the  Presbytery  may  think  best.  The  Moderator  of  the 
Synod,  and  of  the  General  Assembly,  shall  be  chosen  at  each  meeting  of 
those  judicatories:  and  the  Moderator,  or,  in  case  of  his  absence,  another 
member  appointed  for  the  purpose,  shall  open  the  next  meeting  with  a 
sermon,  and  shall  hold  the  chair  till  a  new  Moderator  be  chosen."  It  is 
obvious  that  this  means  till  a  new  one  can  be  chosen  ;  and  ivhen  that  time 
arrives,  is  the  next  matter  for  our  consideration. 


MR.  SERGEANT'S  ARGUMENT.  569 

Here  I  would  submit  it  to  your  Honours,  that  when  points  of  form  ac- 
quire such  power  as  to  be  able  to  overturn  a  whole  Church,  they  must  be 
very  closely  and  strictly  examined;  they  are  equivalent  in  importance  and 
force  to  the  greatest  laws.  Now,  by  the  rules  of  the  Assembly  what  is 
the  next  thing  to  be  done  after  ihe  report  of  the  clerks  on  the  roll?  The 
rules  provide  that  the  Clerks,  as  a  Committee  of  Commissions,  shall  ex- 
amine the  commissions  presented,  and  re])ort  the  names  of  the  undoubted 
members,  who  shall  then  take  their  seats  and  proceed  to  business;  but  they 
do  not  stop  here.  They  direct  that  the  first  thing  which  the  house  shall 
do,  after  being  thus  ready  for  business,  shall  be  the  appointment  of  a  Com- 
mittee of  Elections.  Well,  I  suppose  that  is  equivalent  to  saying,  that  no- 
thing else  shall  be  done  until  a  Committee  of  Elections  has  been  appointed. 
I  interpret  the  whole  of  these  provisions  together  as  ordering,  that  the 
'several  things  which  they  direct  to  be  done,  shall  all  be  done  before  the 
Assembly  proceed  to  the  choice  of  a  new  Moderator.  I  am  not  at  pre- 
sent inquiring  into  the  power  of  the  Assembly  to  make  such  rules  :  I  do 
not  ask  what  was  their  effect,  but  simply  what  they  were.  There  was  in 
1S26  a  change  in  the  form  prescribed  by  the  Constitution  for  examining 
commissions  and  enrolling  the  names.  Previously  it  had  been  required 
that  the  commissions  should  be  publicly  read,  but  then  it  was  ordered  that 
they  should  be  only  examined.  The  article  as  changed  was  sent  down 
to  the  Presbyteries  for  adoption,  and  at  the  same  time  was  sent  down  the 
following  resolution  : 

''It  was  also  resolved,  that  so  soon  as  the  alteration  proposed  in  the  7th 
item  above  enumerated,  shall  appear  to  have  been  constitutionally  adopted 
by  the  Presbyteries,  the  following  rules  of  the  Assembly  shall  be  in  force. 

"  I.  Immediately  after  each  Assembly  is  constituted  with  prayer,  the 
Moderator  shall  appoint  a  Committee  of  Commissions.'' 

That  is,  after  the  sermon,  the  Assembly  is  to  be  constituted  by  prayer, 
and  then  the  Committee  of  Commissions  is  to  be  appointed,  who,  accord- 
ing to  the  next  rules,  are  to  proceed  immediately  to  examine  the  com- 
missions. Subsequently  the  clerks  were  appointed  a  standing  Committee 
of  Commissions;  but  it  must  not  be  inferred  that  this  arrangement  made 
any  change  except  in  the  constitution  of  the  committee. 

Mr.  Randall.  The  time  of  the  committee's  session  was  altered:  it 
now  sits  between  ten  and  eleven  on  the  morning  of  the  Assembly's 
meeting. 

Mr.  Sergeant.  I  agree.  Formerly  the  Assembly  adjourned  until  the 
afternoon,  to  give  the  committee  appointed  time  to  examine  the  commis- 
sions handed  in.  Now  the  clerks  form  a  standing  committee;  and  sit 
before  the  meeting,  in  order  to  avoid  the  delay  of  adjournment.  Then 
what  is  the  next  thing  to  be  done,  after  they  have  examined  the  commis- 
sions and  reported  ? 

"  V.  The  first  act  of  the  Assembly,  when  thus  ready  for  business,  shall 
be  the  appointment  of  a  Committee  of  Elections,  whose  duty  it  shall  be 
to  examine  all  informal  and  unconstitutional  commissions  and  report  on 
the  same  as  soon  as  practicable."  ^nte,  156.  There  you  have  together 
the  whole  of  the  provisions  made  by  these  standing  rules.  Whether 
liable  to  alteration  or  not,  until  altered  they  are  in  force,  and  they  can 
be  altered  only  by  the  Assembly  itself.  Here  are  standing  rules,  which, 
as  to  the   Assembly,  are  as  strong  as  the   provisions  of  the  Constitu- 

72 


570 


PRESBYTERIAN  CHURCH  CASE. 


tion  itself:  they  have  been  constitutionally  made,  and  until  changed  or 
repealed,  cannot  be  departed  from.  Where  do  you  find  an  authority 
for  departing  from  them?  They  can  be  changed  only  by  the  po\yer 
which  made  them.  Every  body  has  certain  forms  of  organization  which 
are  very  material.  In  the  British  Parliament,  a  rule  existed  until  very 
recently,  that  the  first  thing  done  after  the  organization  was  completed, 
should  be  the  reading  of  a  bill.  This  rule  has  been  abolished;  but 
so  long  as  it  was  a  standing  order,  no  business  could  be  transacted  until 
the  bill  had  been  read.  Now  the  question  is,  not  whether  it  v^as  in  the 
power  of  the  Moderator  or  of  the  clerks,  but  \yhether  it  was  in  the  power 
of  the  house,  to  do  any  thing  else  until  a  Committee  of  Elections  had  been 
appointed.  The  old  Moderator  is  put  in  the  chair,  not  to  perform  all  the 
offices  of  a  speaker,  but  simply  that  he  may  suffer  nothing  to  be  done 
until  the  rule  in  regard  to  a  Committee  of  Elections  has  been  complied 
with.  If  Dr.  Patton,  or  Dr.  Mason,  or  Mr.  Squier  rise,  and  demand  that 
some  other  business  shall  be  transacted  before  the  appointment  of  that 
committee,  the  Moderator  is  bound  to  treat  them  with  all  respect,  but 
knowing  well  what  the  rule  directs  to  be  done  next,  must  tell  them  that 
they  are  all  out  of  order.  And  if  they  should  demand  the  reason,  he  need 
only  turn  to  the  rule;  and  unless  they  have  thrown  off  all  government, 
all  law,  they  must  defer  the  business  proposed  until  after  the  appointment 
of  the  committee.  Until  that  time  they  are  bound  by  the  rules  which  I 
have  read.  Then  the  Assembly  has  the  power  to  alter  these  rules.  That 
body  has,  besides,  certain  rules  applicable  to  the  ordinary  transaction  of 
business;  but  those  do  not  operate  at  all  until  after  a  Committee  of  Elec- 
tions has  been  appointed.  These  five  are  all  that  they  have  to  govern 
them  before  that  period.  When  under  their  guidance  the  organization 
has  been  completed,  the  old  Moderator  reads  to  the  new  Moderator,  for 
his  direction,  the  ordinary  rules  for  the  transaction  of  business.  Dr. 
Patton  has  himself  borne  testimony,  though  unwittingly,  to  the  existence 
of  this  rule.  It  appears  from  his  evidence  that  when  Dr.  Beman  was 
appointed  Moderator  nobody  read  the  rules  to  him,  but  that  Dr.  Beman 
told  Dr.  Fisher,  after  the  election  of  the  latter,  that  his  conduct  was  to  be 
governed  by  certain  rules.  If  Dr.  Elliott,  when  occupying  the  chair,  had 
suffered  these  gentlemen  to  go  on  in  the  transaction  of  the  business  pro- 
posed until  after  a  Committee  of  Elections  had  been  appointed,  he  would 
have  violated  the  only  rules,  with  which  he,  or  the  house  at  that  time, 
had  any  thing  to  do.  And  there  could  be  no  such  thing  as  an  appeal,  until 
all  that  those  rules  prescribed  had  been  effected:  every  previous  attempt 
to  make  a  motion  or  to  take  an  appeal  was  out  of  order.  The  body  was 
then  just  struggling  into  life:  there  was  nothing  on  which  an  appeal  could 
arise,  and  nobody  by  whom  an  appeal  could  be  decided. 

Every  deliberative  body  which  has  succession,  must  have  rules  of  some 
sort  to  control  its  organization.  And,  allow  me  to  say,  that  such  rules 
are  of  vast  importance,  first,  to  secure  a  fair  organization  of  the  body;  and 
secondly,  that  every  man  may  know  what  is  doing,  and  to  what  he  is  re- 
quired to  attend.  Every  one  who  contributes  to  the  action  of  a  delibera- 
tive assembly  is  responsible  for  what  is  done.  But  to  be  so  he  must  be  a 
part  of  the  body  equal  to  any  other  part,  excepting  such  portion  of  it  as 
is  invested  with  authority,  not  for  authority's  sake,  but  in  order  to  pre- 
serve the  equality  of  right  among  all  the  rest.     A  Moderator  is  appoint- 


MR.  SERGEANT'S  ARGUMENT.  57  j 

ed,  that  every  man  may  hear  the  questions  proposed,  knowing  from 
whence  he  is  to  expect  them  ;  and  that  hearing  he  may  assent  or  vote  in 
the  negative,  acquiesce,  or  refuse  to  acquiesce,  so  as  to  be  accountable 
thereafter  for  whatever  is  done.  The  Moderator  too  is  bound  to  main- 
tain order,  and  no  voice  must  be  heard  in  the  assembly,  excepting  his  own, 
or  that  of  a  person  addressing  him. 

I  submit  that  ever  so  small  a  departure  from  this  rule  must  produce  in- 
terminable confusion.  The  evident  intention  of  it  is  to  provide  for  all 
questions  being  put  distinctly.  When  they  are  put  from  the  chair,  or  by 
some  person  duly  authorized  and  accredited,  then  no  question  sucli  as  that 
hei-e  agitated — whether  all  the  members  really  heard — can  be  raised. 
The  reason  that  the  Moderator  is  put  into  the  chair  is  not  that  he  may 
have  the  honour  of  sitting  in  a  high  place,  and  bearing  the  insignia  of 
office;  but  that  the  rest  may  be  equal,  may  know  their  rights  and  under- 
stand what  is  doing.  It  is  essential  that  all  business  proposed  to  the  body 
should  be  proposed  by  an  accredited  and  acknowledged  authority,  and 
also  that  the  man  exercising  that  authority  should  actually  have  the  chair. 
Even  the  speaker  has  no  right  to  put  a  question,  excepting  from  the  chair: 
the  chair  is  as  essential  as  the  speaker  himself.  Will  you  tell  me,  that  he 
may  run  down  the  aisle,  and,  standing  in  the  middle  of  the  church,  pro- 
pose a  question  to  the  house  ?  Why,  if  the  Speaker  of  the  House  of  Rep- 
resentatives were  to  leave  his  seat,  and  come  down  upon  the  floor  of  the 
Hall,  or  go  to  the  far  end  of  it,  and  then  put  a  resolution,  he  would  be 
consigned  to  the  custody  of  the  Serjeant-at-arms.  Here  form  becomes 
substance.  The  more  I  think  on  the  subject,  the  more  entirely  am  I 
satisfied  that  without  strict  adherence  to  these  rules  there  can  be  no  order, 
no  knowledge  of  what  is  going  on;  that  an  assembly  must  be  exposed  to 
all  sorts  of  tricks. 

But  again,  there  is  a  provision  bej'^ond  this — a  provision  for  the  vacan- 
cy of  the  chair.  Who  shall  put  a  question  then?  To  enable  any  body  not 
in  the  chair  to  assume  the  duty  of  a  presiding  officer,  it  is  absolutely  es- 
sential that  the  chair  should  first  be  vacant.  So  long  as  it  is  occupied  de 
facto,  as  regards  the  members  it  is  occupied  de  jure,  and  no  body  else 
than  the  actual  occupant  can  propose  any  business  to  the  house.  If  the 
chair  is  vacant,  of  course  that  is  an  emergency  requiring  the  application  of 
a  new  rule.  Then  the  next  person  in  the  eyes  of  the  members,  as  they 
all  look  towards  the  chair — the  clerk — must  put  any  resolution  offered, 
and  this  until  the  chair  is  filled.  All  these  rules,  I  say,  are  conducive  to 
order,  and  are  absolutely  essential  to  the  due  transaction  of  business. 

To  return  to  the  Assembly  of  1838.  I  say,  that  until  the  Committee 
of  Elections  had  been  appointed,  the  body  was  in  the  hands  of  the  officers 
of  the  preceding  year.  They  were  not  under  its  control,  or  responsible 
to  it,  until  the  organization  was  complete,  and  it  was  clothed  with  its  full 
and  legitimate  powers.  And  I  say,  farther,  that  Dr.  Elliott  could  not  en- 
tertain a  motion  or  an  appeal;  that  he  had  been  placed  in  the  chair  merely 
to  keep  order  and  to  perform  a  specific  duty,  ending  with  the  organiza- 
tion, which  was  to  be  completed  by  the  appointment  of  a  Committee  of 
Elections.  Now  it  is  clearly  in  evidence,  that  Dr.  Elliott  was  keeping  very 
good  order,  as  any  body  must  acknowledge  who  reads  the  provision  which 
has  been  referred  to.  But  if  it  were  otherwise — if  any  thing  improper 
had  been  done  by  Dr.  Elliott,  this  was  not  to  be  visited  upon  the  body, 


572  PRESBYTERIAN  CHURCH  CASE. 

which  had  no  control  over  him;   which,  as  I  contend,  could  not  remove 
him. 

When  the  Assembly  is  fully  organized,  the  rules  provided  for  its  organi- 
zation are  no  longer  in  force,  are  at  an  end  ;  and  then  certain  others  take 
their  place.  Many  of  these  are  found  in  the  Appendix  to  the  Constitu- 
tion, and  to  some  of  them  I  shall  hereafter  refer.  You  will  pardon  me 
for  attempting  some  little  farther  vindication  of  the  Assembly  and  of  Dr. 
Elliott,  conducive  to  the  main  end  of  this  argument.  I  invite  your  atten- 
tion to  the  condition  of  the  house  and  of  the  assemblage  which  filled  it 
at  the  time  of  these  occurrences.  I  acknowledge  that  this  was  in  some 
respects  peculiar  ;  but  their  condition  is  always  such  as  to  demand  the  par- 
ticular consideration  of  the  Assembly.  First  a  sermon  was  preached.  To 
hear  this,  a  miscellaneous  assembly  was  collected,  the  whole  church  being 
thrown  open,  and  all  at  liberty  to  take  such  seats  as  they  could  get,  both 
up  stairs  and  down.  The  sermon  being  finished,  the  clerks  took  their 
places  at  the  desk,  and  the  Moderator  of  the  last  year  his  seat,  to  preside 
during  the  organization.  In  the  first  place  he  again  acknowledged  the 
great  obligations  under  which  all  rest  to  the  divine  goodness:  with  this 
prayer  began  the  next  process — the  constitution  of  the  body.  As  it  was 
impossible  to  clear  the  seats  appropriated  to  members,  of  the  audience 
thus  convened,  without  rudeness,  they  were  yet  sufiered  to  remain.  There- 
fore the  assemblage  was  still  a  mixed  one,  and  of  course  this  was  not  the 
proper  time  for  any  especial,  or  nice  question  to  be  propounded  or  decided. 
What  assembly  would  choose  this  occasion  for  dealing  with  such  busi- 
ness ?  Here  the  roll  of  the  house  itself  had  not  yet  been  reported.  The 
circumstances  in  which  the  body  had  convened  were  in  other  respects 
peculiar.  It  was  a  divided  body:  two  parties  of  opposing  views  were 
brought  together,  at  first  in  seeming  harmony,  one  of  which  however,  as 
it  appeared  in  tlie  sequel,  had  come  prepared  to  interrupt  the  ordinary 
business  of  the  Assembly,  and  was  only  waiting  an  opportunity  to  effect 
their  purpose.  They  could  not,  indeed,  long  wait  to  begin  the  contem- 
plated struggle.  They  did  but  suffer  the  prayer  to  be  concluded — that 
was  all.  Besides  this,  the  body  itself  which  claimed  to  be  the  Assembly 
was  of  a  mixed  character,  and  its  different  portions  could  be  separated 
only  by  those  to  whom  the  members  were  known  individually.  So  then 
while  the  ordinary  difficulties  are  very  great,  here  inconveniences  were 
multiplied.  Now,  what  was  the  Moderator  sent  down  by  the  last  Assem- 
bly to  superintend  the  organization,  to  do?  By-and-by  I  shall  contend, 
that  no  question  at  all  could  at  this  juncture  be  put  or  decided ;  and  that 
whether  a  majority  voted  or  not,  none  had  a  right  to  vote.  Mr.  Adair,  one 
of  the  witnesses  for  the  relators  (jinte  p.  109)  says,  "There  were  spectators 
sitting  among  the  members,  as  usual  in  the  morning,  other  arrangements 
not  being  made  until  afternoon.  I  felt  at  liberty  to  take  any  seat  I  found 
unoccupied.  The  house  was  unusually  crowded  at  an  early  hour,  but  I 
have  seen  it  crowded  commonly  on  such  occasions."  He  was  not  a  mem- 
ber, and  hereafter  I  will  show  that  some  who  were  not  members  even 
participated  in  the  proceedings.  But  now  I  am  attempting  to  vindicate 
the  majority  of  the  Assembly  and  Dr.  Elliott;  to  establish  the  point,  that 
it  was  not  consistent  with  justice  for  them  to  depart  in  the  smallest  degree 
from  the  rules  prescribed — the  five  rules  which  were  to  govern  in  the 
organization  of  the   body;  and  at  the  same  time  to  vindicate  the  rules 


MR.  SERGEANT'S  ARGUMENT.  573 

themselves;  showing  that  when  a  contest  was  expected,  and  a  black  cloud 
lowered  over  them  sufficient  to  envelope  the  whole  body  in  storm;  when 
Dr.  Elliott  knew  that  the  elements  of  discord  and  strife  were  gathering 
in  fury,  and  unless, pent  up,  would  break  forth  in  the  midst  of  those  who 
had  collected  in  the  house  of  prayer  for  religious  worship;  that  the  assem- 
bly was  composed  of  all  descriptions  of  people,  of  friends  and   foes,  of 
those  belonging  to  the  household,  of  strangers,  and  of  persons  claiming  to 
be  of  the  household,  though  their  title  was  disputed;  this  was  a  sufficient, 
an  imperative  reason  why  he  should  not  swerve  for  a  single  instant  from 
the  precise  letter  of  his  instructions.     When  we   come  to  the  question 
said  to  have  been  put  by  Mr.  Cleaveland,  we  shall  see  whether  it  could, 
under  such  circumstances,  be  put;  whether  it  was  ascertained  who  voted 
or  not,  or  how  it  was  carried,  or  whether  it  was  carried  at  all,  unless  as 
some  have  supposed,  by  operation  of  law.     Here,  for  the  present,  is  a 
plain  position,  which  rests  upon  the  provisions  of  the  Presbyterian  Law 
book;  that  the  body  had  no  right  to  act  at  this  time,  but  upon  questions 
incident  to  the  organization;  that  none  such  were  offered;  but  that  those 
propounded  were  fit  for  the  assembly's  consideration  only  when  it  was 
fully  organized.     Dr.  .Patton's  motion  was  on  this  account  disallowed. 
And  His  Honour,  Judge  Rogers  says,  that  in  deciding  it  out  of  order  the 
Moderator  was  right,  because  then  there  was  no  house  in  existence,  as  the 
Committee  of  Commissions  had  not  reported.      In  this  decision  at  the 
time  all  seemed  to  acquiesce.    Next,  Dr.  Mason  addressed  the  Moderator. 
He  made  a  motion  which  was  declared  out  of  order,  and  then  appealed, 
but  his  appeal  was  disallowed.     In  this  too,  all  acquiesced.     Herein  it 
is  supposed  Dr.  Elliott  was  wrong.     It  is  admitted  that  in  the  former 
case  he  might  be  right  in  refusing  to  entertain  either  a  motion  or  an  appeal, 
if  there  was  no  body  yet  organized;  but  wherein  do  the  two  cases  differ? 
At  one  time  the  report  of  the  clerks  had,  and  at  the  other  had  not  been 
made.     But  I  contend  that  it  was  not  sufficient  for  this  report  to  be  made. 
Here  stand  five  rules,  prescribing,  not  only  what  the  Moderator,  and  the 
clerks  shall  do,  but  also  what  shall  be  first  done  by  the   incipient  body 
itself;  one  part  of  the  rules  is  no  more  binding  than  the  other,  and  if  the 
Moderator  cannot  put  an  appeal,  or  the  house  perform  any  act  excepting 
those  prescribed,  before  the  whole  of  these  provisions  are  complied  with. 
Dr.  Elliott  was  just  as  right  in  refusing  Dr.  Mason's  appeal,  as  in  refusing 
Dr.  Patton's.    And  the  defect  was,  not  only  that  Dr.  Mason  had  no  right 
to  propose,  his  motion  or  appeal  then,  but  that  neither  the  Moderator  or 
the  house  had  a  right  to  entertain  or  consider  it,  before  the  appointment 
of  a  Committee  of  Ellections.     I  do   not  want  any  higher  authority  than 
these  standing  rules,  whether  they  are  constitutional  rules  or  not. 

Well,  Dr.  Mason  took  his  seat.  Dr.  Patton  had  been  clearly  out  of 
order;  but  supposing  that,  in  the  other  case.  Dr.  Elliott  was  disorderly, 
what  can  that  avail  the  minority?  His  disorder  could  not  put  the  associa- 
tion in  the  wrong,  as  it  cannot  be  alleged  that  he  was  supported  by  the 
association.  In  his  decision,  all  at  the  time  acquiesced.  Then  Mr.  Squier 
arose.  It  is  agreed  that  he  was  out  of  order,  and  had  no  right  to  say  a 
word.  Mr.  Squier  still  addressed  the  Moderator;  and  you  will  observe, 
that  up  to  this  time,  all  did  so.  Dr.  Patton  and  Dr.  Mason,  both  addressed 
him  as  presiding  officer;  and  no  intimation  was  given  of  any  intention  to 
dispute  his  right  so  to  be  addressed:  it  was  not  disputed.    Up  to  this  time, 


574 


PRESBYTERIAN  CHURCH  CASE. 


if  you  had  asked  any  member  whom  he  considered  the  presiding  officer, 
he  would  have  said,  Dr.  Elliott.  When,  then,  did  he  cease  to  be  recog- 
nised as  such  ?  Never — never-  Nor  were  the  acts  subsequently  done, 
such  as  even  to  deny  his  right.  But,  the  truth  is,  that  a  portion  of  the 
body  had  come,  resolved  to  try  out  the  question  which  their  counsel  had 
prepared  for  them,  whether  they  might  not  effect  a  rightful  organization 
at  that  time  and  place;  and,  if  they  could  not,  to  exist  by  themselves  as 
a  separate  assembly.  Dr.  Patton  cannot  rest,  even  until  the  report  of  the 
clerks  is  finished;  Dr.  Mason  is  very  much  afraid,  that  the  advantages  of 
that  time  and  place  will  be  lost;  and  Mr.  Squier  is  equally  anxious  to 
secure  that  time  and  place,  though  his  application,  all  agree,  was  out  of 
order.  Here,  then,  were  three  disorders  to  one,  or  two  to  one,  or  else 
three  to  none.  But,  I  repeat  it,  up  to  this  time,  the  authority  of  the 
Moderator  was  universally  acknowledged.  Every  man  considered  him 
rightfully  entitled  to  the  chair:  there  was  no  dispute  about  his  right  to 
hold  it:  no  suggestion  had  been  made,  whether  it  was  not  proper  to  address 
a  motion  to  any  other  person. 

What  comes  next  ?  Mr.  Cleaveland  rises,  and  delivers  a  written  speech. 
We  have  not  been  allowed  to  have  the  testim.ony  of  Dr.  Beman,  or  Mr. 
Cleaveland;  nor  the  best  testimony  of  what  the  latter  said,  namely,  the 
written  paper,  which  is  unfortunate — most  unfortunate.  The  very  wit- 
nesses, whose  presence  was  more  important  than  that  of  any  others,  were 
absent,  and  their  testimony  is  lost.  We  are  therefore  obliged  to  take,  what 
is  said  to  be  merely  the  substance  of  Mr.  Cleaveland's  remarks.  Though 
they  are  the  very  pivot  on  which  the  whole  case  may  turn,  though  every 
word  is  material,  though  exactly  what  he  said,  is  the  very  thing  which 
above  all  others,  we  ought  to  understand  fully,  we  are  furnished  with  only 
what  he  said  in  substance.  On  the  expressions  used  by  Mr.  Cleaveland, 
the  case  may  depend,  yet  they  are  not  in  evidence,  and  they  ought  to 
have  been  furnished  by  the  other  side.  One  Moderator  is  put  in,  another 
put  out,  and  the  matter  may  depend  much  upon  the  form  of  expression 
used.  Some  of  his  remarks  are  said  to  have  been  read  from  a  paper; 
some,  to  have  been  thrown  in  extemporaneously;  but  the  proof  of  exactly 
what  they  were,  is  not  before  us.  But,  taking  the  evidence  we  have,  in 
the  first  place,  I  say,  that  his  remarks  were  not  directed  toward  the 
removal  of  the  Moderator,  and  I  challenge  the  authority  for  any  such 
construction  of  them.  Mr.  Cleaveland  did  not  of  er  any  motion  against 
him,  but  proceeded  to  read  a  speech,  written  h  "fore  hand — of  course, 
before  Dr.  Elliott  had  done  what  is  now  brought  forward  as  the  sole,  or 
the  great  ground  of  complaint.  Now,  I  say,  that  unless  it  be  proved  that 
this  paper  was  written  at  the  time,  it  cannot  be  contended  that  it  con- 
tained any  intimation,  that  a  different  Moderator  was  desired,  or  that  there 
was  any  question  of  impeaching  Dr.  Elliott's  authority  to  preside.  They 
clearly  meant  to  have  an  organization  of  their  own;  and  what  steps  were 
taken  to  secure  this  object?  They  did  not  remove  Dr.  Elliott  from  his 
place:  him  they  leave  in  the  chair.  But  they  put  up  another  Moderator 
in  the  aisle;  and  then  all  the  members  are  to  look  both  ways,  at  the  hazard 
of  being  construed  on  one  hand,  or  the  other,  to  have  given  assent  to  what 
they  did  not  hear  or  understand.  Heads,  I  win:  tails,  you  lose — a  very 
safe  sort  of  a  game.  Yet  this  is  the  game  played  by  the  minority,  which 
this  court  is  called  upon  to  justify.     But,  I  rest  distinctly  upon  this 


MR.  SERGEANT'S  ARGUMENT. 


575 


ground,  that  no  motion  or  remarks  made,  could  be  addressed  to  any  one 
but  the  chair;  that  a  motion,  if  lawful,  must  be  repeated  from  the  chair, 
and,  if  necessary,  put  in  writing;  that  until  all  this  had  been  done,  no 
representative  was  bound  to  give  his  attention. 

Let  us  now  see  what  was  the  import  of  Mr.  Cleaveland's  proceeding; 
whether  his  intention  was  such  as  is  declared  to  have  been,  or  was  not  to 
organize  the  Assembly  de  novo.  Here  I  shall  not  consider  merely  the 
motion,  made,  as  it  is  alleged,  to  remove  Dr.  Elliott,  but  shall  begin  at 
the  beginning — with  Mr.  Cleaveland's  introductory  remarks.  Let  us  see 
what  we  have  got  here  as  the  substance  of  what  was  said  by  that  gentle- 
man, and  which  could  not  be  applicable  at  all  to  the  case  of  the  Modera- 
tor's violating  his  duty,  because,  as  already  stated,  prepared  before  hand. 
The  minute  prepared  by  a  committee  of  the  New-school  contains  first 
something  of  its  own,  which,  though  merely  a  preface,  one  might  easily 
be  led  to  imagine,  from  the  manner  of  its  connexion,  to  be  a  part  of  what 
Mr.  Cleaveland  said;  but  it  is  not  so,  and  this  requires  attention. 

"  These  repeated  refusals  of  the  Moderator  and  clerks  of  the  General 
Assembly  of  1837  to  perform  the  duties  of  their  respective  offices  in  the 
organization  of  the  General  Assembly  of  1838,  till  its  own  officers  should 
be  appointed,  thus  impeding  the  constitutional  progress  of  business,  the 
Rev.  John  P.  Cleaveland,  of  the  Presbytery  of  Detroit,  rose  and  stated  in 
substance  as  follows:" — That  is,  the  Moderator  would  not  let  Dr.  Patton 
make  a  motion  before  the  roll  had  been  reported,  nor  Dr.  Mason  or  Mr. 
Squier  afterwards,  Mr.  Squier  being  not  even  a  member.  It  was  thus 
that  he  had  impeded  the  constitutional  progress  of  business.  Now  this 
that  I  have  read  does  not  profess  at  all  to  be  what  Mr.  Cleaveland  said. 
He,  according  to  the  minute,  was  raised  to  his  feet  by  this  gross  miscon- 
duct of  the  officers,  by  which,  personally,  he  was  in  no  way  affected,  but 
which  he  could  not  possibly  sit  still  and  bear;  yet  nothing  at  all  of  that 
reason  for  his  interference  appears  in  his  own  words.  He  rose  and  stated 
in  substance  as  follows: — "that  as  the  Commissioners  to  the  General 
Assembly  for  1838,  from  a  large  number  of  Presbyteries,  had  been  refused 
their  seats;" — this  might  very  well  have  been  prepared  before,  for  he 
knew  it  must  happen — "  and  as  we  had  been  advised  by  counsel  learned 
in  the  law,  that  a  constitutional  organization  of  the  Assembly  must  be 
secured  at  this  time  and  in  this  place" — All  this  was  doubtless  written 
beforehand :  you  observe,  he  says  not  a  word  about  the  outrageous  con- 
duct of  the  clerks  and  of  the  Moderator — "  he  trusted  it  would  not  be 
considered  as  an  act  of  discourtesy,  but  merely  as  a  matter  of  necessity,  if 
we  now  proceed  to" — do  what  ?  To  turn  out  Dr.  Elliott,  declaring  him 
unfit  for  the  office  of  Moderator  ?  Nothing  of  this  kind.  On  the  con- 
trary, he  disclaims  all  intention  of  doing  any  thing  discourteous,  and  says 
that  he  acts  under  the  advice  of  counsel  learned  in  the  law,  who  I  am 
sure  advised  him  to  keep  the  peace,  in  attempting  to  effect  a  new  organi- 
zation. Does  he  say  a  word  about  removing  Dr.  Elliott  ?  No;  him  he 
disregards  entirely,  as  also  the  house  as  then  constituted.  No — "  if  we 
now  proceed  to  organize  the  General  Assembly  for  1838,  in  the  fewest 
words,  the  shortest  time,  and  with  the  least  interruption  practicable." — 
(  Vid.  ante,  p.  223.)  What  ?  His  object  was  merely  to  go  on  with  the 
organization  already  in  progress  ?  If  so  what  was  there  to  interrupt? 
No;  he  says,  "  We  have  come  according  to  the  advice  of  counsel,  to 


576  PRESBYTERIAN  CHURCH  CASE. 

maintain  our  rights  by  means  of  a  new  organization;  but  do  not  consider  us 
discourteous,  and  we  will  proceed  to  organize  the  Assembly  with  as  little 
interruption  as  possible."  Well,  at  this  call,  nearly  every  man  of  their 
party  rises  up,  and  forthwith,  we  are  now  told,  with  the  utmost  gravity, 
that  the  majority,  without  being  conscious  of  the  dilemma  in  which  they 
are  placed,  or  knowing  what  they  do,  are  found  voting,  by  their  silence, 
to  put  Dr.  Elliott  out  of  the  chair.  Here  form  becomes  substance — a 
thing  of  vast  importance.  I  do  not  accuse  Mr.  Cleaveland  of  intending 
to  deceive;  but  certainly  if  he  then  designed  what  it  is  now  alleged  that 
he  did,  he  not  only  carefully  avoided  plain  speaking  and  dealing,  but 
directly  and  wilfully  misinformed  and  misled  those  whom  he  addressed; 
and  when  he  came  with  such  honied  words  upon  his  lips,  meditated  a 
trick,  a  deception,  a  fraud,  in  his  heart.  But  I  entertain  too  much  respect 
for  Mr.  Cleaveland  to  credit  this:  I  do  not  believe  he  was  capable  of 
speaking  thus,  when  he  intended  something  so  different  from  what  his 
words  conveyed;  and  of  then  turning  about  and  claiming  to  have  effected 
by  intendment  of  law  the  same  thing  as  if  his  words  had  candidly 
expressed  his  intention.  For  the  present  I  have  done  with  Mr.  Cleave- 
land. He  says  plainly  that  he  was  attempting  a  new  organization;  and 
farther,  his  remarks  are  as  clear  a  declaration  as  he  could  have  made; 
"  Gentlemen,  we  do  not  want  to  disturb  you,  nor  you  to  interfere  with 
us.  Allow  us  to  go  on  with  an  organization,  and  we  will  depart  as  soon 
as  possible."     Ante,  223. 

Next  take  Dr.  Hill's  testimony  on  the  same  subject. — (  Vid.  ante,  pp. 
211-12.)  He  says,  "  I  think  there  was  sufficient  time  given  for  the  vote 
on  Mr.  Cleaveland's  motion  for  the  appointment  of  Dr.  Beman  as  Mode- 
rator, and  I  think  the  question  was  reversed.  I  think  I  may  say,  it  was 
reversed,  and  I  will  give  my  reasons  for  saying  so.  When  Mr.  Cleave- 
land was  about  to  put  that  question,  in  my  estimation,  it  was  the  most  cri- 
tical and  interesting  moment  in  the  whole  proceeding,  because  it  was  the 
incipient  step  in  the  organization,"  '•'•Because  it  was  the  incipient 
step  in  the  organization.'^  Dr.  Hill  is  a  very  honest  old  gentleman,  as 
I  saw  and  knew,  independently  of  my  seeing  and  knowing  that  he  was 
a  minister  of  the  Gospel,  and  independently  of  the  kind  feeling  and  sim- 
plicity of  heart  which  he  manifested  while  on  the  stand.  Here,  undoubt- 
edly, he  spoke  the  truth.  He  was  of  the  same  party  with  Mr.  Cleaveland; 
and  he  says  that  Mr.  Cleaveland's  question  was  the  incipient  step  in  the 
organization.  The  organization  of  whom?  Those  who  did  not  consider 
themselves  organized  before — those  who  came  to  the  church  in  a  body  and 
went  away  in  a  body.  "  I  may  state  here,"  continues  Dr.  Hill,  "  that  I 
had  opposed  the  separate  organization,"  Where  had  he  opposed  it?  Not 
in  that  body.  In  his  integrity  he  has  told  us  that  he  had  opposed  it  some- 
where else.  This  then  was  the  incipient  step  of  an  organization,  to  form 
which  the  rest  had  agreed,  but  to  which  he  was  opposed;  and  it  was  the 
incipient  step  of  a  separate  organization.  That  is,  they  came  to  the 
house  prepared  to  form  the  inception  of  a  separate  organization  of  the 
Assembly. 

I  will  next  call  your  attention  to  the  testimony  of  Mr.  Gilbert  and  Dr. 
Patton.  Dr.  Patton  says,  {Ante, p.  54,)  "He"  (Mr.  Cleaveland)  "did 
not  call  the  Moderator  by  name,  but  looking  toward  him,  addressed  his 
remarks  and  put  his  motion  to  the  house,  a  large  portion  of  which  was 


MR.  SERGEANT'S  ARGUMENT.  577 

between  himself  and  the  Moderator,"  and  of  course  had  their  backs  to 
him.  So  Mr.  Gilbert  also  testifies.  {Ante,  p.  101.)  "  Mr.  Cleaveland  did 
not  address  the  Moderator  when  he  made  these  remarks:  his  face  was  to- 
wards the  Moderator,  but  he  did  not  say  '  Mr.  Moderator.'  I  did  not 
hear  the  word  '  interruption,'  and  some  others."  He  said,  in  addition  to 
what  is  there  recorded,  that  it  was  no  matter  in  what  part  of  the  house  the 
Moderator  stood — that  is,  for  the  purpose  of  the  new  organization.  Then 
here  is  the  clearest  proof  to  contradict  the  assertion  now  made,  that  we 
assented  to  the  removal  of  Dr.  Elliott.  On  what  question  they  supposed 
themselves  to  be  voting,  is  proved  by  the  very  vote  to  appoint  Dr.  Beman 
Moderator,  that  he  might  read  to  the  new  Moderator  the  rules;  which, 
however,  he  afterwards  neglected  to  do,  though  he  referred  Dr.  Fisher  to 
^them.,  He  was  appointed,  no  doubt,  because,  having  been  Moderator  be- 
fore, he  was  supposed  to  be  conversant  with  the  constitution  and  forms  of 
proceeding.  So  they  made  him  Moderator  first,  and  he  put  the  motion  on 
Dr.  Fisher,  and  made  known  to  him  by  what  rules  he  was  to  be  governed. 
This,  then,  was  the  organization  of  the  Assembly  from  the  very  begin- 
ning: it  is  not  correct  in  any  sense  to  say,  that  they  punished  Dr.  Elliott, 
or  removed  him  from  the  chair. 

Now,  this  proceeding  was  the  most  outrageous  disorder  from  beginning 
to  end,  unless  the  New-school  were  attempting  to  effect  a  new  and  sepa- 
rate organization,  which  should  embrace  all  the  commissioners  from  the 
exscinded  Synods,  because  they  had  been  told  by  their  counsel  that  this 
was  necessary,  which  is  their  only  excuse.  This  I  assert  for  the  follow- 
ing reasons.  First,  because  the  motion  was  out  of  season;  a  Committee  of 
Elections  not  having  been  appointed;  secondly,  because  it  was  not  ad- 
dressed to  the  chair.  In  regard  to  the  latter  point  testify  Dr.  Hill,  Mr. 
Gilbert,  and  Dr.  Patton  on  the  side  of  the  relators,  and  Mr.  Brown  on  the 
other  side.  Mr.  Brown  says,  {Ante,  p.  174,)  "  Mr.  Cleaveland  rose  with 
a  paper  in  his  hand.  At  his  first  rising  his  face  was  towards  the  Mode- 
rator, and  his  back  to  me.  I  did  not  hear  him  say  '  Mr.  Moderator.' 
When  he  had  commenced  reading,  he  turned  a  little  round  from  the  chair, 
as  if  addressing  persons  to  his  right,  and  thus  gave  me  an  opportunity  to 
see  the  hand-writing  of  the  paper,  and  to  hear,  distinctly,  what  he  uttered. 
I  can  recollect,  perfectly,  the  main  topics  of  his  discourse,  and  nearly  in 
their  order.  He  commenced  by  declaring,  we  are  about  to  form  a  new 
body;  he  expressed  an  apology  for  the  interruption,  and  wished  not  to  be 
considered  discourteous,  as  they  would  do  it  '  in  the  fewest  words  and  the 
shortest  time  possible.'  "  Which  was  all  right  in  that  view  of  the  case — 
his  intending  to  form  a  new  body.  He  was  certainly  bound  at  any  rate 
to  respect  order  and  decorum.  But  he  could  not  afterwards  take  away 
our  rights,  on  the  pretence  that  we  had  consented  to  part  with  them. 
After  saying  that  he  intended  but  a  little  interruption  of  our  proceedings 
— a  thing  of  no  consequence,  he  is  not  to  carry  off  with  him  all  our  pri- 
vileges. There  are  fables  of  that  sort — cases  where  persons  have  thus 
taken  advantage  of  the  courtesy  of  others;  but  I  never  have  heard  of  such 
conduct's  being  legally  approved.  If  any  one  had  risen  then  and  asserted 
that  Mr.  Cleaveland  did  not  mean  what  he  said,  the  charge  would  have 
been  resented  as  a  slander. 

Mr.  Cleaveland  did  not  address  the  chair.  Now  what  is  the  rule  of 
order  upon  this  subject — if  rules  are  to  be  applied  to  such  a  case?    Let  us 

73 


578  PRESBYTERIAN  CHURCH  CASE. 

see.  "Every  member  when  speaking,  shall  address  himself  to  the  modera- 
tor, and  shall  treat  his  fellow  members,  and  especially  the  moderator,  with 
decorum  and  respect."  So  the  next  rule: — "Without  express  permis- 
sion, no  member  of  a  judicatory,  while  business  is  going  on,  shall  ens 
in   private  conversation;    nor  shall  members  address  one  anot" 

any  person  present,  but  through  the  Moderator."     Jippend. 

R.  21,  22. — It  is  plain  enough  that  Mr.  Cleaveland  violatecWfT'rules 
of  order,  if  he  considered  himself  to  be  acting  as  a  member  of  the 
Assembly  already  partially  organized.  He  did  not  address  the  Modera- 
tor, or  treat  either  him  or  his  fellow  members,,  whom  he  did  not  address 
through  him,  with  respect  and  courtesy.  I  might  refer  to  many  rules 
which  he  violated,  but  those  which  I  mention  are  sufficient:  they  show 
clearly  that  if  his  object  was  really  what  it  is  now  said  to  have  been,  if  he 
intended  merely  to  displace  the  Moderator,  he  was  guilty  of  gross  disor 
der.  If  his  object  was  to  effect  a  separate  organization  of  a  part  of  the 
commissioners,  he  was  exempt  from  the  operation  of  these  rules;  but  if 
he  meant  what  it  is  now  contended  he  did,  they  were  obligatory.  There 
is  another  regulation  his  neglect  of  which  made  him  in  the  highest  degree 
disorderly.  Mr.  Cleaveland  obtained  what  would  be  called  out  of  doors  a 
snap-judgment.  "A  motion  made  must  be  seconded,  and  afterwards 
repeated  by  the  moderator,  or  read  aloud,  before  it  is  debated;  and  every 
motion  shall  be  reduced  to  writing,  if  the  moderator,  or  any  member 
require  it." — Jlppend.  to  Const.  R.  11. — According  to  the  other  rule 
every  motion  must  be  addressed  to  the  Moderator:  according  to  this  no 
member  is  bound  to  give  attention  to  a  motion,  until  it  has  been  stated 
from  the  chair,  after  being  first  stated  by  the  mover.  It  appears  to  me 
that  these  rules  are  decisive  of  the  question. 

These  questions  of  order,  I  repeat  it,  cannot  be  too  much  insisted  on: 
such  rules  are  absolutely  necessary  'to  avoid  snap-judgments.  Every  eye 
must  be  able  to  see,  and  every  ear  to  hear,  in  order  that  all  may  partici- 
pate, else  they  cannot  be  bound  by  what  is  done.  It  is  of  the  utmost 
consequence  that  there  should  be  som.e  one  in  the  chair  to  receive  motions 
and  communicate  them  to  the  house;  but  the  eye  cannot  follow  the  move- 
ments of  two  presiding  officers  at  the  same  instant,  nor  can  every  body  be 
making  a  motion  at  one  time. 

Now,  I  say  that  the  object  of  the  New-school  was  to  form  a  separate 
organization:  they  did  not  addreAour  Moderator,  or  the  chair,  and  the 
question  was  not  stated  from  the  jfcir  and  therefore  was  never  submitted 
to  the  body.  The  argument  of  the  other  side  is  that  we  were  bound 
because  we  did  not  vote  on  a  disorderly  motion,  put  at  the  other  end  of 
the  house — a  disorder  which  violated  every  rule  of  that  body,  and  of 
every  deliberative  body,  and  which  was  allowed  merely  because  Mr. 
Cleaveland  said  that  he  was  acting  under  the  advice  of  counsel  learned  in 
the  law,  and  would  interrupt  as  little  as  possible,  it  being  generally  under- 
stood that  they  would  go  away  with  what  they  had  got — a  little  show  of 
organization  of  their  own,  just  enough  to  begin  a  controversy  with.  Of 
the  majority  there  was  not  a  single  man  who  understood  that  the  motion 
was  addressed  to  him,  or  that  he  was  voting  on  any  motion;  not  a  single 
man  who,  we  may  not  take  for  granted,  would  have  opposed  such  a  motion 
as  it  is  now  pretended  Mr.  Cleaveland  put.  Here  we  may  consider 
another  question:  what  did  any  one  of  either  party  vote  upon?     If  a 


f 


MR.  SERGEANT'S  ARGUMENT.  579 

motion  had  been  made  to  remove  Dr.  Elliott,  that  would  have  been  per- 
fectly intelligible.  If  a  motion  to  put  Dr.  Beman  in  his  place,  that  also 
might  have  been  understood;  but  no  such  motion  was  made.  The  only- 
question  put,  was,  'f  Will  you  allow  of  our  forming  a  separate  organiza- 
tion ?  We  wish  to  give  no  offence,  but  have  been  advised  that  such  an 
organization  is  necessary  to  us."  And  then  they  put  a  question  pertain- 
ing to  their  organization— "Shall  we  in  our  incipient  state  have  Dr. 
Beman  for  our  Moderator?"  If  we  were  silent  what  did  we  mean? 
Only,  "  You  may  have  Dr.  Beman  for  your  Moderator:  we  have  ours, 
and  if  you  choose  to  separate  from  us,  with  as  little  interruption  as  possi- 
ble to  our  proceeding,  to  be  sure,  you  may  take  any  Moderator  you 
please. "  Now  then,  because  we  did  not  object  to  their  having  Dr.  Beman 
as  their  Moderator,  (which  was  the  question  put)  are  we  to  be  considered 
as  voting  to  give  up  ours?  That,  is  an  entirely  different  thing,  and  if  the 
latter  was  the  import  of  the  motion,  it  certainly  was  not  so  put  as  to  be 
intelligible  to  any  man,  woman,  or  child  in  the  body.  And  whatever  the 
motion  may  have  been,  if  disorderly,  it  could  have  no  such  effect.  Such 
a  construction  would  be  unfair  and  unjust. 

Not  only  was  the  question  not  put  by  our  Moderator,  the  Moderator 
in  the  chair — the  actual  and  the  legal  presiding  officer — but  not  from  any 
chair  entitled  to  the  respect  of  the  body.  I  go  farther — I  mean  to  dis- 
prove that  we  ever  voted  upon  it  by  intendment  of  law,  as  we  certainly 
did  not  in  fact.  It  was  not  put  by  any  officer  authorized  by  the  Assem- 
bly to  put  questions.  Mr.  Cleaveland  never  was  so  authorized ;  and 
neither  Dr.  Beman  nor  Dr.  Fisher  ever  was ;  for  Mr.  Cleaveland  did 
not  ask  theconsentof  the  Assembly  to  his  putting  a  question;  and  neither 
Dr.  Beman  or  Dr.  Fisher  once  claimed  to  be  Moderator.  They  went 
out  of  the  house  leaving  our  body,  with  its  Moderator  and  clerks  as  it 
was:  they  did  not  pretend  at  that  time  to  disturb  our  organization.  But 
no  one  is  bound  to  notice  any  question  which  is  not  put  by  an  officer  of 
the  house,  or  by  some  authorized  person.  And  more  especially  was  no 
one  bound  to  give  attention  in  this  case,  because  the  regular  officers  were 
there,  in  their  places,  and  fully  competent  to  act.  There  was  no  absence 
of  a  Moderator  or  clerk;  no  gap  in  the  organization:  all  was  complete. 
But  these  gentlemen  came  and  asked,  "  Let  us  have  an  opportunity  to 
form  a  little  organization  of  our  own,  here  behind  you,  in  order  that  we 
may  be  ready  for  a  lawsuit.  We  will  interrupt  you  the  least  possible, 
and  leave  you  as  soon  as  we  can."  To  this  we  consented;  but  authorit}'^ 
to  any  one  to  put  a  question  to  us,  we  never  gave. 

Now  let  us  advert  to  the  condition  of  the  Assembly,  at  the  time  of  these 
transactions.  All  the  witnesses  agree  that  there  was  much  tumult  and 
disorder.  How  was  this  occasioned  ?  It  is  ascribed  to  the  Old-school; 
and  this  is  supposed  to  justify  what  was  done  on  the  other  side,  and  to 
be  a  sufficient  reason  for  ousting  us.  What  was  this  tumult  and  disorder, 
which  is  chargeable  upon  the  Old-school  ?  Some  cried  "Order!"  some 
"Shame!" — some  one  thing,  and  some  another,  incited  to  it  by  the  most 
disorderly  proceedings.  They  saw  a  spectacle  of  disorder  in  its  worst 
shape — while  one  Moderator  was  presiding  in  the  usual  manner  and  place, 
another  getting  up  at  the  opposite  end  of  the  house,  and  paying  no  respect 
to  either  the  officer  thus  presiding,  or  the  house,  and  treating  of  things 
which  did  not  concern  the  business  then  before  the  Assembly.    If  they 


580  PRESBYTERIAN  CHURCH  CASE. 

were  disorderly  how  can  you  impute  it  to  Dr.  Elliott  or  any  of  the  mem- 
bers, as  a  disorder,  that  they  called  to  order,  or  cried  "  Shame" !  It  is  an 
utter  perversion.  The  only  question  is,  were  the  New-school  disorderly? 
If  so  it  was  the  duty  of  the  Moderator,  and  the  privilege  of  every  mem- 
ber to  call  them  to  order.  They  might  have  made  as  much  noise  as  they 
could  until  Mr.  Cleaveland  stopped,  and  no  one  could  have  blamed  them 
for  it.  I  know  of  no  other  limit  to  the  duty  of  the  one  or  the  privilege 
of  the  other.  It  is  said  we  caused  the  disturbance,  and  therefore  must 
submit  to  the  consequences.  How  did  we  cause  it?  By  calling  to  order? 
That  I  say  was  not  a  disturbance,  when  the  person  called  to  order  was 
disorderly.  The  chair  and  every  member  had  a  right  to  persist  until  the 
disorderly  individual  obeyed  the  call.  Farther,  this  call  to  order  from 
the  Moderator  and  members  was  a  complete  negation  of  the  idea  that  the 
latter  meant  to  vote:  it  shows  that  they  were  endeavoring  to  suppress  the 
whole  proceeding;  that  they  did  not  consent  to  the  removal  of  Dr.  Elliott, 
but  to  secure  the  peace  of  the  body  called  to  order.  They  failed  to  restore 
order,  but  shall  the  attempt  be  imputed  as  an  offence?  They  had  a  right 
to  call  order,  if  any  were  disorderly. 

My  simple  position  here  is,  that  there  could  not  be  two  presiding  offi- 
cers at  the  same  time.  Farther,  I  saj'^,  that  in  the  Assembly,  and  in  every 
other  deliberative  body,  there  must  be  a  known  place  for  the  presiding 
officer  to  occupy;  and  while  he  occupies  it,  he  alone  is  to  be  respected  as 
the  presiding  officer.  That  place  indicates  who  is  the  true  officer.  When 
he  is  absent,  questions  may  be  put  by  the  Clerk,  or  by  some  one  appointed 
for  the  purpose.  I  do  not  speak  of  the  removal  of  an  officer.  If  Mr. 
Cleaveland  had  effected  Dr.  Elliott's  removal,  then  provision  must  be 
made  as  in  the  case  of  the  Moderator's  absence;  but,  in  the  meantime, 
until  he  was  removed,  to  whom  were  motions  to  be  addressed?  Were  the 
members  to  look  before  or  behind  them,  or  both  ways?  I  suppose  both. 
Even  if  Mr.  Cleaveland's  motion  was  in  effect  intended  to  remove  Dr. 
Elliott,  yet  until  the  motion  was  carried,  until  his  removal  was  decreed, 
he  continued  to  occupy  the  chair,  and  to  be  Moderator;  and  while  this 
was  the  case,  no  one  was  bound  to  pay  respect  or  to  attend  to  any  other. 
I  ask  your  Honours,  what  other  course  could  be  taken  by  the  party  called 
Old-school — as  if  that  were  a  term  of  reproach  ?  I  can  think  of  none.  What 
course  were  they  to  take,  supposing  they  were  the  majority?  They  were 
satisfied,  as  it  appears,  that  Dr.  Elliott  had  done  his  duty;  they  were 
satisfied  that  he  should  occupy  the  chair,  and  knew  that  so  long  as  he  was 
in  the  chair  they  were  bound  to  respect  him,  and  him  alone.  Could  they, 
consistently  with,  their  respect  to  him  and  to  themselves,  vote  on  a  ques- 
tion put  by  another  person  behind  their  backs?  Would  not  that  have  been 
surrendering  the  whole  case?  If  they  had  thus  voted,  they  must  have 
turned  their  backs  on  Dr.  Elliott,  and  their  faces  to  Mr.  Cleaveland — to- 
wards the  rising  sun. 

It  is  a  material  fact,  that  Mr.  Cleaveland  was  not  even  in  the  neighbor- 
hood of  the  chair.  Here  was  a  large  assembly,  composed  of  those  com- 
missioners who  had  been  reported  on  the  roll,  those  not  reported,  of  dele- 
gates from  the  exscinded  Synods,  and  of  persons  who  had  come  merely  lo 
hear  the  sermon,  or  to  see  what  would  take  place.  Of  those  entitled  to 
vote,  the  great  body  could  run  no  risk,  as  things  at  first  stood,  for  they 
sat  immediately  in   front  of  the   chair.     In   the   neighborhood  of  Mr. 


f 


MR.  SERGEANT'S  ARGUMENT.  5§1 

Cleaveland,  and  behind  him,  were  the  most  of  the  New-school  members, 
the  delegates  claiming  a  seat,  and  many  by-standers.  There  is  no  doubt 
of  that.  Now,  who  had  a  right  to  vote  on  any  question?  Those  who  had 
been  reported,  and  jione  others.  They  were  the  members  of  the  Old- 
school,  and  a  few  of  the  New-school.  Of  course  I  do  not  take  into  account 
the  exscinded  commissioners,  though  if  they  had  been  added,  the  New- 
school  would  still  have  been  in  the  minority.  Those  who  sat  before  Mr. 
Cleaveland  had,  without  doubt,  a  right  to  vote:  they  were  principally  of 
the  Old-school,  who  were  satisfied  with  Dr.  Elliott.  Mr.  Cleaveland, 
then,  was  not  only  not  in  the  neighborhood  of  the  chair,  but  was  not  in 
front  of  the  great  body,  probably  not  of  any  part  of  those  entitled  to  vote: 
he  put  the  question  to  their  backs.  1  believe  there  is  no  rule  of  order  of 
any  deliberative  body  which  allows  a  question  to  be  stated  behind  the 
backs  of  the  members.  It  is  a  bull  to  talk  of  addressing  people  behind 
their  backs.  The  forms  of  good  breeding,  as  well  as  all  rules  of  parlia- 
mentary order,  forbid  such  a  thing  entirely. 

The  disorder  which  ensued  from  Mr.  Cleaveland's  motion,  was  so 
great,  that  several  of  the  witnesses,  as  they  have  testified,  were  able  to 
hear  nothing.  I  have  a  list  of  sixteen,  who  have  given  testimony  to  that 
effect — and  I  know  not  how  many  m.ore  said  the  same — and  I  hope,  that 
among  these,  whose  names  I  shall  read,  there  are  none  who  will  not  be 
believed  to  have  spoken  the  truth.  They  are  Dr.  Phillips,  Dr.  Wilson, 
Dr.  Miller,  Mr.  Lowrie,  Mr.  Twitchell,  Mr.  Wilson,  Mr.  Symington, 
Mr.  Boardman,  Dr.  Plumer,  Dr.  A.  W.  Mitchell,  Mr.  Auchincloss,  Mr. 
J.  B.  Mitchell,  and  Mr.  Agnew.  They  all  swear,  that  so  far  from  hear- 
ing what  was  done,  they  did  not  know  at  all,  some  of  them  until  the  next 
day,  all  until  a  considerable  time  afterwards,  that  Dr.  Fisher  had  been 
elected  Moderator.  Could  any  thing  be  done  in  this  way,  so  as  to  bind 
those  behind  w^hose  backs  the  questions  were  taken?  Mr.  Cleaveland 
gets  up  a  little  way  behind  the  great  body  of  the  members,  and  amid  the 
distraction  and  confusion  of  a  scene  of  almost  unexampled  disorder,  puts 
a  certain  question,  and  you  are  called  upon  to  wring,  from  our  silence  and 
astonishment,  contrary  to  our  own  declarations,  and  to  the  manifest  truth, 
an  acquiescence  by  intendment  of  law.  We  did  not  see,  hear,  or  know 
what  was  going  on;  and  we  answer  to  any  one  who  contends  that  we 
were  bound,  that  he  must  first  establish  the  facts,  that  we  actually  heard, 
saw,  and  knew,  before  such  a  consequence  can  be  fastened  upon  us.  That 
must  first  be  proved.  In  all  cases,  where  questions  are  put  by  the  pre- 
siding officer,  the  regularly  constituted  authority,  it  is  perfectly  plain,  that 
all  who  have  an  opportunity  of  hearing  are  bound.  But,  where  a  person 
who  has  no  authority  to  put  a  question,  rises,  and  after  a  few  words  in 
explanation,  makes  a  motion,  and  immediately  puts  the  question  upon  it, 
behind  the  backs  of  a  great  portion  of  the  members,  not  addressing  the 
Moderator,  nor  giving  him  an  opportunity  to  state  the  motion,  can  those 
behind  whose  backs  it  is  put,  be  bound,  when  they  swear  positively  to 
the  fact  that  they  did  not  hear  what  was  said?  Nay,  the  rules  of  every 
deliberative  body  require  a  reasonable  pause  after  a  motion  has  been 
addressed  to  the  chair,  and,  if  it  be  demanded,  that  the  motion  be  put  in 
writing;  and  so  do  the  rules  of  the  Assembly,  which  I  have  read.  Accord- 
ing to  the  latter,  when  a  motion  is  oflfered,  if  it  be  in  order,  the  Modera- 
tor must  formally  state  it;  and  it  must  be  put  in  writing,  if  he  or  any 


582  PRESBYTERIAN  CHURCH  CASE. 

member  require.  But  Mr.  Cleaveland,  in  the  true  spirit  of  his  professed 
object,  the  forming  of  a  separate  organization,  proceeded  as  rapidly  and 
with  as  little  interruption  as  possible.  Indeed,  he  went  on  so  rapidly,  as 
to  leave  it  in  considerable  doubt — that  is  enough  for  my  purpose,  if  the 
negative  be  not  fully  established— to  leave  it  in  doubt,  whether  the  ques- 
tion was  reversed.  The  good  old  gentleman,  to  whose  testimony  I  have 
referred — Dr.  Hill,  says  that  the  rolling  fire  of  the  ayes  had  not  yet 
ceased,  when  the  reverse  of  the  question  was  put.  He  says  that  the  Old 
School  were  not  in  good  training.  Certainly  they  did  not  fire  by  platoons: 
there  may  have  been  some  single  guns.  And,  so  far  as  Mr.  Cleaveland 
was  concerned,  certainly  there  was  good  reason  why  he  should  not  wait 
till  the  rolling  fire  had  ceased,  if,  though  the  question  was  put  behind  our 
backs,  and  out  of  our  hearing,  we  were  to  be  bound,  just  as  if  we  had  first 
heard,  and  then  said,  aye.  Now,  what  part  of  the  rules  is  more  essential, 
than  that  requiring  a  speaker  to  address  the  Moderator,  and  the  motion 
to  be  stated  from  the  chair,  and  opportunity  be  given  for  debate?  Where 
was  opportunity  for  debate  allowed?  All  had  a  right  to  debate;  yet  not 
the  least  chance  was  given.  Nay,  the  members  were  cautioned — so  we 
may  interpret  Mr.  Cleaveland's  language — that  there  was  to  be  no  debate. 
At  any  rate,  where  was  the  opportunity  given?  Crack!  crack!  crack! 
the  reverberating  shouts  of  "Aye!"  fell  upon  the  ear,  as  if  their  learned 
counsel  had  told  them,  that  they  must  not  lose  an  instant;  that  they  must 
not  allow  the  thread  of  their  proceedings  to  be  broken;  that  they  must 
get  through  at  all  hazards;  and  then  it  was  proclaimed,  that  the  Assembly 
had  adjourned,  to  meet  in  Old  Buttonwood.  Could  questions  thus  pu4, 
bind  any  but  those  who  actually  voted? 

Here  is  a  solution  of  the  whole  difiiculty.  There  were  in  the  house  at 
the  time,  two  well-known  and  distinct  bodies,  entertaining  adverse  views, 
not  originating  on  that  day,  but  long  before — they  had  become  so  fully 
embodied  that  one  party  had  consulted  counsel  about  their  difficulties — 
I  don't  know  whether  the  other  had  done  the  same  or  not.  There  they 
met  all  on  the  same  floor.  One  party  wished  to  organize  the  Assembly 
according  to  their  own  views,  and  on  their  own  plan;  the  other  to  organ- 
ize it  adversely.  They  certainly  had  a  right  to  put  such  questions  as 
affected  their  separate  organization:  we  made  no  objection  to  that.  But 
they  had  no  right  to  attempt  to  put  a  question  in  our  body.  If  an  indi- 
vidual of  their  number  claimed  a  right  to  make  a  motion,  which  we  were 
to  act  upon,  he  must  in  presenting  it  address  himself  to  our  officers.  This 
mode  of  proceeding  would  have  been  intelligible  to  all.  They  might  ap- 
point Dr.  Beman  or  Dr.  Fisher  Moderator:  that  is  not  our  concern,  so 
long  as  there  is  question  of  their  own  party  only.  But  if  the  question  be 
whether  we  shall  be  affected,  it  is  manifest  that  they  could  address  us 
only  through  the  accredited  organ  of  our  body.  Else,  they  did  not  ad- 
dress us  at  all.  They  might  speak  French,  or  German,  or  Latin,  as  they 
chose,  in  addressing  each  other;  but  English  is  our  language,  and  if  they 
spoke  in  a  strange  tongue,  we  must  take  for  granted  that  they  were  talk- 
ing to  somebody  else,  not  to  us:  they  must  speak  English  in  addressing 
us.     Is  not  that  the  honest  sense  of  the  matter? 

But  we  called  these  gentlemen  to  order.  In  this  we  committed  no 
disorder,  if  they  were  disorderly.  It  is  strange  that  they  could  not  tell 
us  in  a  plain  way,  without  equivocation,  what  they  wanted.     If  they  had 


MR.  SERGEANT'S  ARGUMENT. 


583 


f 


done  so,  and  we  afterwards  bad  consented,  we  might,  perhaps,  be  bound 
by  that  consent.  But  surely  we  are  not  to  be  circumvented  by  disorderly 
stratagem. 

I  have  almost  done  with  this  subject  of  the  disorder  which  was  made. 
But  I  would  ask,  why  impute  it  to  the  Old-school?  The  Old-school  is  not 
one  body — a  unit.  How,  when  there  is  no  corporation,  no  association, 
are  you  to  make  one  person  answer  for  an  offence  committed  by  another? 
Supposing  that  some  made  a  disturbance  purposely  to  prevent  a  regular 
vote,  are  all  bound  by  that  vote,  when  prevented  b)'^  the  uproar  from 
knowing  what  was  done,  unless  you  establish  the  fact  of  a  conspiracy,  and 
that  all  were  parties  to  it?  In  this  case  there  could  be  no  conspiracy.  The 
Old-school,  being  the  invaded  party,  merely  stood  on  the  defensive:  con- 
spiracy was  impossible.  How  then  was  it  possible  that  all  the  members 
of  a  body  which  is  not  a  unit,  could  be  affected  by  the  disorder  of  some 
of  their  number,  supposing  some  were  disorderly.  I  am  not  acquainted 
with  any  such  rule. 

But  to  what  rule  is  it  attempted  to  make  all  those  v^^hich  govern  in  the 
construction  of  ordinary  affairs,  yield  in  the  present  case?  The  consi- 
deration of  this  matter  concerns  us  all,  for  it  must  be  of  universal  applica- 
tion. Are  we  all  willing  to  abide  the  consequences  of  such  a  rule  ?  Can 
we  live  by  it?  Is  it  such  an  one  as  your  Honours,  if  now  framing  a  rule, 
would  lay  down?  First,  it  is  said  that  the  question  put  by  Mr.  Cleave- 
land  was  a  question  of  privilege.  Not  a  privileged  question,  which  is 
only  one  that  is  not  necessarily  out  of  order  because  another  is  depending, 
as  the  question  put  when  it  is  thought  better  to  postpone,  or  to  commit  a 
subject.  These  all  have  a  definite  order  prescribed:  they  cannot  cut  off 
and  interrupt  every  thing.  A  question  of  privilege  is  a  very  different 
thing.  There  is  a  difference  in  regard  to  them  on  the  different  sides  of 
the  Atlantic.  The  privilege  of  Parliament  would  not  be  borne  here:  that 
is  entirely  indefinite,  which  seems  in  the  eye  of  some  to  constitute  its 
great  value.  The  House  of  Commons  is  at  present  wrangling  about  a 
question  of  privilege  with  Lord  Denman,  who  is  a  firm  man,  and  being 
well  supported,  has  yet  held  to  his  own  opinion,  and  from  present 
appearances  is  not  likely  to  yield.  The  history  of  this  matter  is  a  little 
curious.  The  House  of  Commons  claims  a  right  of  printing  whatever  it 
pleases,  and  of  being  exempt  from  all  question  in  regard  to  the  same.  So 
far  as  regards  its  own  votes  and  resolutions,  there  can  be  no  doubt  of  the 
right;  but  it  claims,  farther,  the  privilege  of  printing  any  paper  whatever, 
and  not  only  to  print  enough  copies  for  its  own  use,  but  also  to  authorize 
the  printer's  issuing  some  for  sale.  In  a  recent  instance  the  House 
authorized  the  printing  of  a  slanderous  paper,  and  allowed  some  extra 
copies  to  be  printed  and  sold.  One  of  these  got  into  the  hands  of  the 
injured  person,  and  he  brought  the  matter  before  the  Court  of  King's 
Bench,  which  decided  against  the  printer.  In  the  House  of  Commons 
Sir  Robert  Peel  has  defended  the  rights  of  the  House  with  great  ability. 
An  able  article  in  the  Quarterly  Review  takes  the  opposite  side.  The 
Lord  Chief  Justice  is  firm  in  supporting  his  judgment,  that  papers  so 
printed  may  not  be  sold  or  distributed.  This  gives  us  some  notion  of 
what  is  called  the  privilege  of  Parliament:  such  a  privilege  certainly 
would  not  be  suffered  in  this  country. 

But  what  is  meant  here  by  a  question  of  privilege?     Mr.  Meredith 


584  PRESBYTERIAN  CHURCH  CASE, 

especially  has  dwelt  upon  this  point.  He  says  that  the  rejection  of  the 
exscinded  commissioners  was  a  breach  of  privilege,  and  that  the  object  of 
Mr.  Cleaveland's  motion  wa.*  to  punish  the  Moderator  for  that  breach. 
But  parliamentary  privilege  is  not  the  privilege  of  the  member:  it  is  the 
privilege  of  the  body:  so  far  from  its  being  an  individual  right,  the  first 
Manual  of  legislative  practice  which  you  open,  will  tell  you,  that  an  indi- 
vidual whose  privilege  is  invaded,  cannot  wave  the  right  of  prosecuting 
the  matter:  the  house  punishes  the  breach.  Great  solemnity  too  is  required 
in  the  infliction  of  punishment  for  a  breach  of  privilege.  The  first  thing 
is  to  determine,  that  it  is  a  breach  of  privilege.  Then  the  question  arises 
whether  the  house  will  agree  to  take  it  into  consideration.  Then,  if  it  is 
so  agreed,  the  question  of  privilege  has  precedence  in  the  order  of  busi- 
ness at  all  times,  and  when  not  disposed  of,  continues  to  have  precedence, 
often  to  the  great  annoyance  of  many  of  the  members.  Here  the  ques- 
tion arises,  did  any  member  of  the  Assembly  say,  "This  is  a  case  of  a  breach 
of  privilege?  If  I  may  make  any  mention  of  my  little  experience  in 
such  matters,  I  would  say,  that  I  have  never  seen  a  question  of  privilege 
come  up  in  such  a  shape:  if  this  was  one,  it  certainly  appeared  in  a  very 
strange  disguise;  and  I  cannot  yet  assent  to  its  bearing  that  character. 
The  motion  made  by  Mr.  Cleaveland  looked  like  a  very  different  thing. 
He  certainly  did  not  complain  of  a  breach  of  privilege,  and  if  a  breach 
had  been  committed,  it  was  another  breach  of  privilege  to  foist  it  into  the 
house  in  this  vvay,  before  asking  leave  or  making  known  what  he  meant. 
Had  the  house  ever  consented  to  take  it  into  consideration?  It  had- never 
been  asked  to  do  so.  Mr.  Cleaveland  of  his  own  authority  put  the  ques- 
tion to  the  Assembly,  therein  being  guilty  of  a  breach  of  the  privilege 
of  every  member,  excepting  those  who  expressly  consented  to  this  pro- 
ceeding. He  made  a  motion  too,  which,  even  if  the  house  could  be 
construed  to  have  agreed  to  receive  it,  he  did  not  pretend  to  be  any  thing 
of  the  sort  now  described.  What  then  becomes  of  the  argument  founded 
on  the  assumption  that  the  question  proposed  was  a  question  of  privilege? 
Again,  it  is  contended  that  the  Assembly  had  a  right  to  remove  their 
Moderator.  I  incline,  for  reasons  already  stated,  to  think  that  they  had 
not  that  right  until  the  appointment  made  of  a  Committee  of  Elections. 
But,  at  any  rate,  they  did  not  remove  him:  there  was  no  motion  made  to 
that  effect.  There  certainly  is  not  a  precedent  for  any  man's  usurping 
the  place  of  Moderator.  The  case  which  occurred  in  1S28,  in  which 
Hollis  was  concerned,  was  of  quite  a  different  sort.  There  the  speaker 
wanted  to  leave  the  chair,  but  was  held  in  his  seat  by  force.  He  was 
acting  in  obedience  to  the  king's  ^command;  but  already  a  contest  had 
begun  between  the  Parliament  and  the  king,  and  you  can  see  the  true 
spirit  of  the  contest  in  the  occurrences  of  that  day,  as  distinctly  as  you  see 
it  on  the  day  when  they  cut  oflfthe  king's  head.  It  was  that  spirit  which 
arrayed  the  Parliament,  in  the  name  of  the  king,  against  the  king,  and 
under  the  influence  of  which  they  raised  troops  in  his  name,  to  make  war 
upon  his  person.  They  had  then  another  head:  that  was  king  Crom- 
well. The  speaker  was  acting  by  the  king's  authority,  and  he  begged, 
prayed,  and  wept,  but  it  was  all  of  no  avail.  In  the  scuffle,  Hollis  who 
was  in  the  neighborhood  of  the  chair,  collected  the  voices  of  the  members 
in  that  neighborhood;  but  this  opposition  had  no  effect;  the  Parliament 
adjourned  and  was  dissolved.     And  when,  many  years  after,  the  transac- 


MR.  SERGEANT'S  ARGUMENT. 


585 


tion  came  into  review,  what  was  done?  Was  it  declared  quite  orderly? 
No.     The  act  passed  bears  no  such  construction. 

Hollis  in  the  mean  time  had  been  arraigned  before  the  Star  Chamber, 
but  there  all  his  valour  oozed  out — whether  at  his  fingers'  ends  or  not,  I 
do  not  know.  But  at  any  rate  he  was  as  humble  and  penitent  as  the 
speaker  had  previously  been.  The  new  Parliament  voted,  that  the  speaker 
ought  not  to  have  abandoned  his  duty  and  left  the  chair;  that  in  doing  so 
he  had  violated  the  privilege  of  the  house;  but  without  approving  the  con- 
duct of  Hollis. 

What  analogy  can  you  find  between  this  case,  and  that  of  Mr.  Cleave- 
land,  standing  in  the  pew,  and  making  the  members  vote  the  contrary  of 
what  they  meant?  I  answer,  that  the  case  is  no  precedent;  that  it  was 
jiot  intended  as  a  precedent  for  such  times  as  these;  though  times  like 
those  which  produced  it,  may  not  be  far  distant  in  England,  if  we  are  to 
judge  from  the  number  of  pikes  said  to  have  been  lately  made,  in  one  of 
her  large  manufacturing  towns. 

Again,  it  is  said,  that  the  clerks  could  not  put  any  question,  but  by 
order  of  the  house.  The  clerks,  of  course,  cannot  make  an  entry  on  the 
journal,  but  by  order.  2  Hatsell,  201,  237.  But  you  will  find  that  it  is 
in  evidence,  that  in  the  Assembly,  at  least,  the  clerk  may  put  a  motion 
without  an  express  order.  Mr.  Meredith,  indeed,  has  discovered  that  in 
1835,  the  question  put  by  Dr.  Ely,  was  put  by  him  as  a  member,  and  not 
as  clerk.  I  do  not  think  so:  I  understand  just  the  contrary;  and  the 
thing  is  certainly  stated  in  the  plainest  terms.  The  original  question  on 
the  appointment  of  the  Moderator,  was  put  by  the  Stated  Clerk,  who  also 
called  the  house  to  order — this  without  the  express  consent  of  the  body — 
and  Dr.  Beman  was  placed  in  the  chair.  After  he  had  been  there  some 
time,  he  was  discovered  not  to  be  entitled  to  the  ofiice.  A  motion  was 
made,  to  re-consider  the  vote  by  which  he  had  been  appointed:  the  minute 
does  not  show  by  whom  the  question  on  this  motion  was  put — I  suppose 
by  Dr.  Beman — but  it  was  decided  to  re-consider  the  vote;  and,  after 
some  speaking  on  the  subject,  it  was  ordered  that  the  question  should  be 
put  by  the  Stated  Clerk:  "Whereupon  Dr.  Ely  put  the  question;"  and 
Dr.  Ely  was  the  Stated  Clerk.  The  question  was  ordered  to  be  put  by 
the  Stated  Clerk.  Was  it  then  put  by  him  as  an  individual  member,  or 
as  Stated  Clerk?  If  he  put  it  as  an  individual  member,  that  was  not  in 
accordance  with  the  order.  It  appears,  then,  that  it  was  put  by  the  clerk; 
and  by  him  must  such  questions  be  put,  on  all  occasions.  In  that  case, 
they  were  very  attentive  to  the  rules  of  order;  for,  when  the  motion  was 
carried  to  re-consider  the  question,  the  chair  was  immediately  regarded 
as  vacant,  every  thing  as  respects  it,  was  placed  back  in  its  original  situa- 
tion, as  if  nothing  had  been  done,  and  the  question  was  again  put  on  the 
original  motion,  by  the  Stated  Clerk.  Then  Dr.  McDowell  was  elected, 
because  he  was  entitled  to  occupy  the  chair.  But  here  was  a  case  in 
which  the  right  person  was  already  in  the  chair.  The  chair  was  full. 
Dr.  Elliott  had  been  the  Moderator  of  the  preceding  Assembly,  and  it 
was  clearly  his  duty  to  preside.  In  case  of  his  absence,  the  clerk  should 
have  put  the  question;  or,  if  there  had  been  no  clerk,  a  temporary  officer 
might  have  been  appointed  for  the  purpose.  But,  so  long  as  the  chair 
was  filled,  and  that  with  the  right  person,  none  but  himself  could  put  a 
question;  unless,  in  a  case  of  peculiar  delicacy,  he  had  retired  from  the 

74 


586  PRESBYTERIAN  CHURCH  CASE. 

chair,  and  requested  another  person  to  occupy  it,  or,  not  leaving  the  chair, 
asked  some  one  to  put  it  for  him. 

I  have  vow  gone  through  with  what  I  have  considered  my  duty  in  this 
case,  not  without  labour  to  myself,  or  fatigue,  as  I  fear,  to  your  Honours. 
But  a  sufficient  apology  may  be  found,  as  it  appears  to  me,  in  the  great 
importance  of  the  questions  which  it  involves.  Those  who  know  any- 
thing of  this  matter,  know  well  that  I  have  not  sought  the  occasion  of 
appearing  here.  Sickness  prevented  me  from  being  present  during  the 
greater  part  of  the  trial,  and  I  felt  some  reluctance  to  come  in  at  the  pre- 
sent stage  of  the  case,  not  only  because  I  had  'not  attended  the  trial,  but 
more  particularly  for  other  reasons.  I  have  been  long  acquainted  with 
many  of  the  gentlemen  on  both  sides,  and  have  gi'eat  respect  and  much 
kind  feeling  for  them.  I  was  sorry  to  see  them  here  arrayed  against  each 
other  in  a  civil  court.  I  can  assure  them  that  it  has  not  been  without 
pain,  that  I  have  been  obliged,  professionally,  to  turn  my  face  away  from 
the  view  in  which  I  have  always  before  regarded  them;  and  in  which  I 
shall  continue  to  regard  them,  notwithstanding  that  it  has  fallen  to  my  lot, 
to  attempt  in  a  professional  capacity  to  show  which  party  are  in  the  right. 
I  have  now  performed  my  duty,  and  disclosed  the  grounds  on  which  I 
think  the  right  of  the  defendants  stands.  And  if  I  have  consumed  a  con- 
siderable time,  I  may  at  least  feel  satisfied  in  the  reflection,  that  I  have 
had  no  inordinate  desire  to  consume  it,  or  needlessly  to  waste  a  single 
moment.  On  every  ground,  I  trust  it  has  been  shown  that  the  case  is 
clearly  with  the  defendants,  and  that  the  verdict  must  be  set  aside. 

Court  adjourned. 

SATURDAY  MORNING,  April  27th— 10  o'clock. 

Mr.  Randall  said  a  few  words  in  reply  to  Mr.  Sergeant: — If  he  should 
attempt  to  reply  to  all  the  new  matter  which  that  gentleman's  argument 
contained,  he  must  reply  to  the  whole.  The  ground  taken  by  Mr.  Ser- 
geant in  regard  to  the  jurisdiction  of  the  court,  he  had  before  understood 
to  be  entirely  abandoned  by  the  counsel  for  the  defendants;  that  nothing 
had  been  heard  of  it  since  July,  1838.  A  case  decided  by  the  Supreme 
Court  of  Delaware  had  been  referred  to,  but  in  the  opinion  of  C.  J. 
Johns,  one  part  of  which  had  been  read,  there  was  a  distinction  taken 
between  acts  of  the  ecclesiastical  Presbytery,  and  of  the  civil  Presbytery  or 
corporation;  and  it  was  held  that  if  an  act  of  the  latter,  excluding  the  plain- 
tiff, had  been  alleged,  a  mandamus  would  lie;  but  that  the  affidavit  made 
no  such  allegation.  (Here  Mr.  Randall  read  two  or  three  short  extracts 
from  the  opinion. —  J^id.  ante  537,  et  seq.)  The  jurisdiction  of  the 
court  in  such  cases  had  been  settled  in  both  Pennsylvania  and  Maryland. 
He  would  allude  to  one  other  point  of  Mr.  Sergeant's  argument.  Sup- 
posing a  question  to  have  been  put,  in  1835,  by  Dr.  Ely  as  Stated  Clerk, 
that  did  not  sustain  the  position  taken  by  the  counsel.  The  Stated  Clerk 
is  not  the  clerk  of  the  house:  he  is  the  depositary  of  the  records.  The 
clerks  of  the  house,  are  the  Permanent  and  Temporary  Clerks. 


587 


WEDNESDAY  MORNING,  May  Sth— 10  o'clock. 


Chief  Justice  Gibson  delivered  the  opinion  of  the  Court. 

To, extricate  the  question  from  the  multifarious  mass  of  irrelevant  mat- 
ter in  which  it  is  enclosed,  we  must,  in  the  first  place,  ascertain  the  specific 
character  of  the  General  Assembly,  and  the  relation  it  bears  to  the  corpo- 
ration which  is  the  immediate  subject  of  our  cognizance.  This  Assembly 
has  been  called  a  quasi  corporation;  of  which  it  has  not  a  feature.  A 
quasi  corporation  has  capacity  to  sue  and  be  sued  as  an  artificial  person; 
which  the  Assembly  has  not.  It  is  also  established  by  law;  which  the 
Assembly  is  not.  Neither  is  the  Assembly  a  particular  order  or  rank  in 
the  corporation,  though  the  latter  was  created  for  its  convenience;  such, 
for  instance,  as  the  share-holders  of  a  bank  or  joint-stock  company,  who 
are  an  integrant  part  of  the  body.  It  is  a  segregated  association,  which, 
though  it  is  the  reproductive  organ  of  corporate  succession,  is  not  itself  a 
member  of  the  body;  and  in  that  respect  it  is  anomalous.  Having  no 
corporate  quality  in  itself,  it  is  not  a  subject  of  our  corrective  jurisdiction, 
or  of  our  scrutiny,  farther  than  to  ascertain  how  far  its  organic  structure 
may  bear  on  the  question  of  its  personal  identity  or  individuality.  By 
the  charter  of  the  corporation,  of  which  it  is  the  handmaid  and  nurse,  it 
has  a  limited  capacity  to  create  vacancies  in  it,  and  an  unlimited  power 
over  the  form  and  manner  of  choice  in  filling  them.  It  would  be  suffi- 
cient for  the  civil  tribunals,  therefore,  that  the  assembled  commissioners 
had  constituted  an  actual  body;  and  that  it  had  made  its  appointment  in 
its  own  way,  without  regard  to  its  fairness  in  respect  to  its  members:  with 
this  limitation,  however,  that  it  had  the  assent  of  the  constitutional  ma- 
jority, of  which  the  official  act  of  authentication  would  be,  at  least,  prima 
facie  evidence.  It  would  be  immaterial  to  the  legality  of  the  choice  that 
the  majority  had  expelled  the  minority,  provided  a  majority  of  the  whole 
body  concurred  in  the  choice.  This  may  be  safely  predicated  of  an  un- 
divided Assembly,  and  it  would  be  an  unerring  test  in  the  case  of  a  divi- 
sion could  a  quorum  not  be  constituted  of  less  than  such  a  majority;  but, 
unfortunately,  a  quorum  of  the  General  Assembly  may  be  constituted  of  a 
very  small  minority,  so  that  two,  or  even  more,  distinct  parts  may  have 
all  the  external  organs  of  legitimate  existence.  Hence,  where,  as  in  this 
instance,  the  members  have  formed  themselves  into  separate  bodies,  nu- 
merically sufficient  for  corporate  capacity  and  organic  action,  it  becomes 
necessary  to  ascertain  how  far  either  of  them  was  formed  in  obedience  to 
the  conventional  law  of  the  association,  which,  for  that  purpose  only,  is  to 
be  treated  as  a  rule  of  civil  obligation. 

The  division  which,  for  purposes  of  designation,  it  is  convenient  to 


588  PRESBYTERIAN  CHURCIII   CASE, 

call  the  Old-school  party,  was  certainly  organized  in  obedience  to  the 
established  order  ;  and,  to  legitimate  the  separate  organization  of  its 
rival,  in  contravention,  as  it  certainly  was,  of  every  thing  like  precedent, 
would  require  the  presentation  of  a  very  urgent  emergency.  At  the  stated 
time  and  place  for  the  opening  of  the  session,  the  parties  assembled,  with- 
out any  ostensible  division;  and,  when  the  organization  of  the  whole  had 
proceeded  to  a  certain  point,  by  the  instrumentality  of  the  Moderator  of 
the  preceding  session,  who,  for  that  purpose,  was  the  constitutional  organ, 
a  provisional  Moderator  was  suddenly  chosen,  by  a  minority  of  those  who 
could  be  entitled  to  vote,  including  the  exscinded  commissioners.  The 
question  on  the  motion  to  elect,  was  put,  not  by  the  Chair,  but  by  the 
mover  himself;  after  which,  the  seceding  party  elected  a  permanent  Mo- 
derator, and  immediately  withdrew,  leaving  the  other  party  to  finish  its 
process  of  organization,  by  the  choice  of  its  Moderator  for  the  session. 

In  justification  of  this  apparent  irregularity,  it  is  urged  that  the  consti- 
tutional Moderator  had  refused  an  appeal  to  the  commissioners  in  attend- 
ance, from  his  decision,  which  had  excluded  from  the  roll  the  names  of 
certain  commissioners  who  had  been  unconstitutionally  severed,  as  it  is 
alleged,  from  the  Presbyterian  connexion,  by  a  vote  of  the  preceding  ses- 
sion. It  is  conceded  by  the  argument,  that  if  the  Synods,  with  the  de- 
pendent Presbyteries  by  which  those  commissioners  were  sent,  had  been 
constitutionally  dissolved,  the  motion  was  one  which  the  Moderator  was 
not  bound  to  put,  or  the  commissioners  to  notice;  and  that  whatever  im- 
plication of  assent  to  the  decision  which  ensued,  might  otherwise  be  de- 
duced from  the  silence  of  those  who  refused  to  speak  out,  about  which 
it  will  be  necessary  to  say  something  in  the  sequel,  there  was  no  room 
for  any  such  implication  in  the  particular  instance.  It  would  follow  also, 
that  there  was  no  pretence  for  the  deposal  of  the  Moderator,  if  indeed 
such  a  thing  could  be  legitimated  by  any  circumstances,  for  refusing  an 
appeal  from  his  exclusion  of  those  who  had  not  colour  of  title,  and  con- 
sequently, that  what  else  might  be  reform,  would  be  revolution.  And 
this  leads  to  an  inquiry  into  the  constitutionality  of  the  act  of  excision. 

The  sentence  of  excision,  as  it  has  been  called,  was  nothing  else  than 
an  ordinance  of  dissolution.  It  bore  that  the  Synods  in  question,  having 
been  formed  and  attached  to  the  body  of  the  Presbyterian  Church  under, 
and  in  execution  of,  the  plan  of  union,  "  be,  and  are  hereby  declared 
to  be,  out  of  the  ecclesiastical  connexion  of  the  Presbyterian  Church  in 
the  United  States  of  America;  and  that  they  are  not  in  form  or  in  fact,  an 
integral  portion  of  said  Church."  Now  it  will  not  be  said  that  if  the  dis- 
solved Synods  had  no  other  basis  than  the  plan  of  union,  they  did 
not  necessarily  fall  along  with  it,  and  it  is  not  pretended  that  the 
Assembly  was  incompetent  to  repeal  the  union  prospectively,  but  it  is 
contended  that  the  repeal  could  not  impair  rights  of  membership  which 
had  grown  up  under  it.  On  the  other  hand,  it  is  contended  that  the  plan 
of  union  was  unconstitutional  and  void  from  the  beginning,  because  it  was 
not  submitted  to  the  Presbyteries  for  their  sanction;  and  that  no  right  of 
membership  could  spring  from  it.  But  viewed,  not  as  a  constitutional 
regulation  which  implies  permanency  of  duration,  but  as  a  temporary 
expedient,  it  acquired  the  force  of  a  law  without  the  ratification  of  those 
bodies.      It  was  evidently  not  intended  to  be  permanent,  and  it  conse- 


OPINION  OF  THE  COURT.  5§9 

quently  was  constitutionally  enacted  and  constitutionally  repealed  by  an 
ordinary  act  of  legislation;  and  those  Synods  which  had  their  root  in  it, 
could  not  be  expected  to  survive  it.  There  never  was  a  design  to  attempt 
an  amalgamation  of  ecclesiastical  principles  which  are  as  immiscible  as 
water  and  oil;  much  less  to  effect  a  commixture  of  them  only  at  parti- 
cular geographical  points.  Such  an  attempt  would  have  compromised  a 
principle  at  the  very  root  of  Presbyterial  government,  which  requires  that 
the  officers  of  the  Church  be  set  apart  by  special  ordination  for  the  work. 
Now  the  character  of  the  plan  is  palpable,  not  only  in  its  title  and  provi- 
sions, but  in  the  minute  of  its  introduction  into  the  Assembly.  We  find 
in  the  proceedings  of  lS01,page  256,  that  a  committee  was  raised  "  to 
consider  and  digest  a  plan  of  government  for  the  churches  in  the  7ieiv 
settlements  agreeably  to  the  proposal  of  the  General  Association  of  Con- 
necticut;" and  that  the  plan  adopted  in  conformity  to  its  report,  is  called 
"  a  Plan  of  Union  for  the  new  settlements."  The  avowed  object  of  it 
was  to  prevent  alienation — in  other  words,  the  affiliation  of  Presbyterians 
in  other  churches,  by  suffering  those  who  were  yet  too  few  and  too  poor 
for  the  maintenance  of  a  minister,  temporarily  to  call  to  their  assistance 
the  members  of  a  sect  who  differed  from  them  in  principles,  not  of  faith, 
but  of  ecclesiastical  government.  To  that  end,  Presbyterian  ministers 
were  suffered  to  preach  to  Congregational  churches,  while  Presbyterian 
churches  were  suffered  to  settle  Congregational  ministers;  and  mixed 
congregations  were  allowed  to  settle  a  Presbyterian  or  a  Congregational 
minister  at  their  election,  but  under  a  plan  of  government  and  discipline 
adapted  to  the  circumstances.  Surely  this  was  not  intended  to  outlast  the 
inability  of  the  respective  sects  to  provide  separately  for  themselves,  or 
to  perpetuate  the  innovations  on  Presbyterial  government  which  it  was 
calculated  to  produce.  It  was  obviously  a  missionary  arrangement  from 
the  first;  and  those  who  built  up  Presbyteries  and  Synods  on  the  basis  of 
it,  had  no  reason  to  expect  that  their  structures  would  survive  it,  or  that 
Congregationalists  might,  by  force  of  it,  gain  a  foothold  in  the  Presby- 
terian Church,  despite  of  Presbyterial  discipline.  They  embraced  it  with 
all  its  defeasible  properties  plainly  put  before  them;  and  the  power  which 
constituted  it,  might  fairly  repeal  it,  and  dissolve  the  bodies  that  had 
grown  out  of  it,  whenever  the  good  of  the  Church  should  seem  to 
require  it. 

Could  the  Synods  however  be  dissolved  by  a  legislative  act?  I  know 
not  how  they  could  have  been  legitimately  dissolved  by  any  other.  The 
Assembly  is  a  homogeneous  body,  uniting  in  itself,  without  separation  of 
parts,  the  legislative,  executive  and  judicial  functions  of  the  government; 
and  its  acts  are  referable  to  the  one  or  the  other  of  them,  according  to 
the  capacity  in  which  it  sat  when  they  were  performed.  Now  had  the 
exscinded  Synods  been  cut  off  by  a  judicial  sentence  without  hearing  or 
notice,  the  act  would  have  been  contrary  to  the  cardinal  principles  of 
natural  justice,  and  consequently  void.  But  though  it  was  at  first  resolved 
to  proceed  judicially,  the  measure  was  abandoned;  probably  because  it 
came  to  be  perceived  that  the  Synods  had  committed  no  offence. 

A  glance  at  the  plan  of  union  is  enough  to  convince  us  that  the  disor- 
der had  come  in  with  the  sanction  of  the  Assembly  itself.  The  first 
article  directed  missionaries  (the  word  is  significant,)  to  the  new  settle- 


590  PRESBYTERIAN  CHURCH  CASE. 

ments  to  promote  a  good  understanding  betwixt  the  kindred  sects.  The 
second  and  third  permitted  a  Presbyterian  congregation  to  settle  a  Con- 
gregational minister,  or  a  Presbyterian  minister  to  be  settled  by  a  Congre- 
gational church;  but  these  provided  for  no  recognition  of  the  people  in 
charge  as  a  part  of  the  Presbyterian  body — at  least  they  gave  them  no 
representation  in  its  government.  But  the  fourth  allowed  a  mixed  con- 
gregation to  settle  a  minister  of  either  denomination;  and  it  committed 
the  government  of  it  to  a  standing  committee,  but  with  a  right  to  appeal 
to  the  body  of  male  communicants  if  the  appellant  were  a  Congre- 
gationalist,  or  to  the  Presbytery  if  he  were,  a  Presbyterian.  Now  it 
is  evident  the  Assembly  designed  that  every  such  congregation  should 
belong  to  a  Presbytery  as  an  integrant  part  of  it,  for  if  its  minister  were 
a  Congregationalist,  in  no  way  connected  with  the  Presbyterian  Church, 
it  would  be  impossible  to  refer  the  appellate  jurisdiction  to  any  Presbytery 
in  particular.  This  alone  would  show  that  it  was  designed  to  place  such 
a  congregation  in  ecclesiastical  connexion  with  the  Presbytery  of  the  dis- 
trict; but  this  is  not  all.  It  was  expressly  provided  in  conclusion,  that 
if  the  "  said  standing  committee  of  any  church,  shall  depute  one  of  them- 
selves to  attend  the  Presbytery,  he  may  have  the  same  right  to  sit  and  act 
in  the  Presbytery  as  a  ruling  elder  of  the  Presbyterian  Church."  For 
what  purpose  if  the  congregation  were  not  in  Presbylerial  fellowship? 

It  is  said  that  this  jus  represent  at  ionis  was  predicated  of  the  appeal 
precedently  mentioned;  and  that  the  exercise  of  it  was  to  be  restrained 
to  the  trial  of  it.  The  words,  however,  were  predicated  without  restric- 
tion; and  an  implied  limitation  of  their  meaning,  would  impute  to  the 
Assembly  the  injustice  of  allowing  a  party  to  sit  in  his  own  cause,  by 
introducing  into  the  composition  of  the  appellate  court,  a  part  of  the 
subordinate  one.  That  such  an  implication  would  be  inconsistent  with 
the  temper  displayed  by  the  Assembly  on  other  occasions,  is  proved  by 
the  order  which  it  took  as  early  as  1791,  in  the  case  of  an  appeal  from 
the  sentence  of  the  Synod  of  Philadelphia,  whose  members  it  prevented 
from  voting  on  the  question,  (Assembly's  Digest,  p.  332,)  as  well  as  by 
its  general  provision,  that  "  members  of  a  judicatory  may  not  vote  in  the 
superior  judicatory  on  a  question  of  approving  or  disapproving  their 
records."  (Id  page  333.) 

The  principle  has  since  become  a  rule  of  the  Constitution,  as  appears  by 
the  Book  of  Discipline,  Chap.  VII.  Sect.  3,  paragraph  12.  As  the  repre- 
sentatives of  those  anomalous  congregations  therefore  could  not  sit  in 
judgment  on  their  own  controversies,  it  is  pretty  clear  that  it  was  intended 
they  should  be  represented  generally,  else  they  would  not  be  represented 
at  all,  in  the  councils  of  the  Church,  by  those  who  might  not  be  Presby- 
terians; and  that  to  effect  it,  the  principle  of  Presbyterial  ordination  was 
to  be  relaxed,  as  regards  both  the  ministry  and  eldership:  and  it  is  equally 
clear  that  had  the  Synods  been  cited  to  answer  for  the  consequent  relaxa- 
tion as  an  offence,  they  might  have  triumphantly  appeared  at  the  bar  of 
the  Assembly  with  the  Plan  of  Union  in  their  hand.  That  body,  however, 
resorted  to  the  only  constitutional  remedy  in  its  power:  it  fell  back,  so 
to  speak,  on  its  legislative  jurisdiction,  in  the  exercise  of  which,  the 
Synods  were  competently  represented  and  heard  by  their  commissioners. 

Now  the  apparent  injustice  of  the  measure  arises  from  the  contempla- 


OPINION  OF  THE  COURT.  59J 

lion  of  it  aa  a  judicial  sentence  pronounced  against  parties  who  were 
neither  cited  nor  heard;  which  it  evidently  was  not.  Even  as  a  legisla- 
tive act,  it  may  have  heen  a  hard  one,  though  certainly  constitutional,  and 
strictly  just.  It  was  impossible  to  eradicate  the  disorder  by  any  thing 
less  than  a  dissolution  of  those  bodies  with  whose  existence  its  roots  were 
so  intertwined  as  to  be  inseparable  from  it,  leaving  their  elements  to  form 
new  and  less  heterogeneous  combinations.  Though  deprived  of  Presby- 
terial  organization,  the  Presbyterian  parts  were  not  excluded  from  the 
Church,  provision  being  made  for  them,  by  allowing  them  to  attach  them- 
selves to  the  nearest  Presbytery. 

It  is  said,  there  is  not  sufficient  evidence  to  establish  the  fact,  that  the 
exscinded  Synods  had  actually  been  constituted  on  the  '•  Plan  of  Union," 
•in  order  to  have  given  the  Assembly  even  legislative  jurisdiction.  The 
testimony  of  the  Rev.  Mr.  Squier,  however,  shows  that  in  some  of  the 
three  which  were  within  the  state  of  New  York,  congregations  were  some- 
times constituted  without  elders;  and  the  Synod  of  the  Western  Reserve, 
when  charged  with  delinquency  on  that  head,  instead  of  denying  the  fact, 
promptly  pointed  to  the  "Plan  of  Union"  for  its  justification.  But,  what 
matters  it,  whether  the  fact  were  actually  what  the  Assembly  supposed  it 
to  be?  If  that  body  proceeded  in  good  faith,  the  validity  of  its  enactment 
cannot  depend  on  the  justness  of  its  conclusion.  We  have,  as  already 
remarked,  no  authority  to  adjudge  its  judgments  on  their  merits;  and  this 
principle  was  asserted  with  conclusive  force,  by  the  presiding  judge  who 
tried  the  cause.  Upon  an  objection  made  to  an  inquiry  into  the  composi- 
tion of  the  Presbytery  of  Medina,  it  was  ruled,  that  "with  the  reasons  for 
the  proceedings  of  1837,  (the  act  of  excision,)  we  have  nothing  to  do.  We 
are  to  determine  only  what  was  done:  the  reasons  of  those  who  did  it  are 
immaterial.  If  the  acts  complained  of,  were  within  the  jurisdiction  of  the 
Assembly,  their  decision  must  be  final,  though  they  decided  wrong." 
This  was  predicated  of  judicial  jurisdiction,  but  the  principle  is  necessa- 
rily as  applicable  to  jurisdiction  for  purposes  of  legislation.  I  cite  the 
passage,  however,  to  show  that  after  a  successful  resistance  to  the  intro- 
duction of  evidence  of  the  fact,  it  lies  not  with  the  relators  to  allege  the 
want  of  it. 

If,  then,  the  Synods  in  question  were  constitutionally  dissolved,  the 
Presbyteries  of  which  they  had  been  composed,  were,  at  least  for  purposes 
of  representation,  dissolved  along  with  them;  for  no  Presbytery  can  be  in 
connexion  with  the  General  Assembly,  unless  it  be  at  the  same  time  sub- 
ordinate to  a  Synod  also  in  connexion  with  it,  because  an  appeal  from  its 
judgment,  can  reach  the  tribunal  of  the  last  resort,  only  through  that 
channel.  It  is  immaterial  that  the  Presbyteries  are  the  electors:  a  Synod 
is  a  part  of  the  machinery  which  is  indispensable  to  the  existence  of  every 
branch  of  the  Church.  It  appears,  therefore,  that  the  commissioners  from 
the  exscinded  Synods,  were  not  entitled  to  seats  in  the  Assembly,  and 
that  their  names  were  properly  excluded  from  the  roll. 

The  inquiry  might  be  rested  here;  for  if  there  were  no  colour  of  right 
in  them,  there  was  no  colour  of  right  in  the  adversary  proceedings  which 
were  founded  on  their  exclusion.  But,  even  if  their  title  were  clear,  the 
refusal  of  an  appeal  from  the  decision  of  the  Modeiator,  would  be  no 


592 


PRESBYTERIAN  CHURCH  CASE. 


ground  for  the  degradation  of  the  officer,  at  the  call  of  a  minority;  nor 
could  it  impose  on  the  majority  an  obligation  to  vote  on  a  question  put 
unofficially,  and  out  of  the  usual  course.  To  all  questions  put  by  the  estab- 
lished organ,  it  is  the  duty  of  every  member  to  respond,  or  be  counted 
with  the  greater  number,  because  he  is  supposed  to  have  assented  before 
hand  to  the  result  of  the  process,  pre-established  to  ascertain  the  general 
will;  but  the  rule  of  implied  assent,  is  certainly  inapplicable  to  a  measure, 
which,  when  justifiable  even  by  extreme  necessity,  is  essentially  revolu- 
tionary, and  based  on  no  pre-established  process  of  ascertainment  what- 
ever. 

To  apply  it  to  an  extreme  case  of  inorganic  action,  as  was  done  here, 
might  work  the  degradation  of  any  presiding  officer  in  our  legislative 
halls,  by  the  motion  and  actual  vote  of  a  single  member,  sustained  by  the 
constructive  votes  of  all  the  rest;  and  though  such  an  enterprise  may 
never  be  attempted,  it  shows  the  danger  of  resorting  to  a  conventional 
rule,  when  the  body  is  to  be  resolved  into  its  original  elements,  and  its 
rules  and  conventions  to  be  superseded,  by  the  very  motion.  For  this 
reason,  the  choice  of  a  Moderator  to  supplant  the  officer  in  the  chair,  even 
if  he  were  removable  at  the  pleasure  of  the  commissioners,  would  seem 
to  have  been  unconstitutional. 

But  he  was  not  removable  by  them,  because  he  had  not  derived  his 
office  from  them;  nor  was  he  answerable  to  them  for  the  use  of  his  power. 
He  was  not  their  Moderator.  He  was  the  mechanical  instrument  of  their 
organization;  and  till  that  was  accomplished,  they  were  subject  to  his 
rule — not  he  to  theirs.  They  were  chosen  by  the  authority  of  his  man- 
date, and  with  the  power  of  self-organization,  only  in  the  event  of  his  ab- 
sence at  the  opening  of  the  session.  Coporally  present  but  refusing  to 
perform  his  function,  he  might  be  deemed  constructively  absent,  for  con- 
stitutional purposes,  insomuch  that  the  commissioners  might  proceed  to 
the  choice  of  a  substitute  without  him;  but  not  if  he  had  entered  on  the 
performance  of  the  task;  and  the  reason  is  that  the  decision  of  such  ques- 
tions as  were  prematurely  pressed  here,  is  proper  for  the  decision  of  the 
body  when  prepared  for  organic  action,  which  it  cannot  be  before  it  is 
fully  constituted  and  under  the  presidency  of  its  own  Moderator;  the 
Moderator  of  the  preceding  session  h^xn^  functus  officio.  There  can  be 
no  occasion  for  its  action  sooner;  for  though  the  commissioners  are  ne- 
cessarily called  upon  to  vote  for  their  Moderator,  their  action  is  not  or- 
ganic, but  individual.  Dr.  Mason's  motion  and  appeal,  though  the  clerks 
had  reported  the  roll,  were  premature;  for  though  it  is  declared  in  the 
twelfth  chapter  of  the  Form  of  Government,  that  no  commissioner  shall 
deliberate  or  vote  before  his  name  shall  have  been  enrolled,  it  follows  not 
that  the  capacity,  consummated  by  enrollment,  was  expected  to  be  exer- 
cised during  any  part  of  the  process  of  organization,  but  the  choice  of  a 
Moderator;  and  moreover,  the  provision  may  have  been  intended  for  the 
case  of  a  commissioner  appearing  for  the  first  time,  when  the  house  was 
constituted. 

Many  instances  may  doubtless  be  found  among  the  minutes,  of  motions 
entertained  previously,  for  our  public  bodies,  whether  legislative  or  judi- 
cial, secular  or  ecclesiastical,  are  too  prone  to  forget  the  golden  precept — 


OrmiON  OF  THE  COURT.  593 

"Let  all  things  be  done  decently  and  in  order."  But  these  are  merely 
instances  of  irregularity  which  have  passed  sub  silentio,  and  which  can- 
not change  a  rule  of  positive  enactment.  It  seems,  then,  that  an  appeal 
from  the  decision  of  the  Moderator  did  not  lie;  and  that  he  incurred  no 
penalty  by  the  disallowance  of  it.  The  title  of  the  exscinded  commis- 
sioners could  be  determined  only  by  the  action  of  the  house,  which  could 
not  be  had  before"  its  organization  were  complete;  and,  in  the  mean  time, 
he  was  bound,  as  the  executive  instrument  of  the  preceding  assembly,  to 
put  its  ordinance  into  execution:  for  to  the  actual  assembly,  and  not  to  the 
Moderator  of  the  preceding  one,  it  belonged  to  repeal  it. 

It  would  be  decisive,  however,  that  the  motion,  as  it  was  proposed,  pur- 
ported not  to  be  in  fact  a  question  of  degradation  for  the  disallowance  of 
an  appeal,  but  one  of  new  and  independent  organization.  It  was  ostensi- 
bly, as  well  as  actually,  a  measure  of  transcendental  power,  whose  purpose 
was  to  treat  the  ordinance  of  the  preceding  assembly  as  a  nullity,  and  its 
Moderator  as  a  nonentity.  It  had  been  prepared  for  the  event  avowedly 
before  the  meeting.  The  witnesses  concur  that  it  was  propounded  as  a 
measure  of  original  organization  transcending  the  customary  order;  and 
not  as  a  recourse  to  the  ultimo  ratio  for  a  specific  violation  of  it.  The 
ground  of  the  motion,  as  it  was  opened  by  the  mover,  was  not  the  disal- 
lowance of  an  appeal,  which  alone  could  afford  a  pretext  of  forfeiture,  but 
the  fact  of  exclusion.  To  affect  silent  members  with  an  implication  of 
assent,  however,  the  ground  of  the  motion  and  nature  of  the  question  must 
be  so  explicitly  put  before  them  as  to  prevent  misconception  or  mistake; 
and  the  remarks  that  heralded  the  question  in  this  instance,  pointed  at, 
not  a  removal  of  the  presiding  incumbent,  but  a  separate  organization  to 
be  accomplished  with  the  least  practicable  interruption  of  the  business  in 
hand;  and  if  they  indicated  an}^  thing  else,  they  were  deceptive.  The 
measure  was  proposed  not  as  that  of  the  bod}^,  but  as  the  measure  of  a 
party;  and  the  cause  assigned  for  not  having  proposed  it  elsewhere,  was 
that  individuals  of  the  party  had  been  instructed  by  counsel  that  the  pur- 
pose of  it  could  not  be  legally  accomplished  in  any  other  place.  No  wit- 
ness speaks  of  a  motion  to  degrade;  and  the  rapidity  of  the  process  by 
which  the  choice  of  a  substitute,  not  a  successor,  was  affected,  left  no 
space  for  reflection  or  debate.  Now,  before  the  passive  coaimissioners 
could  be  affected  by  acquiescence  implied  from  their  silence,  it  ought  to 
have  appeared  tliat  they  were  apprized  of  what  was  going  on;  but  it  ap- 
pears that  even  an  attentive  ear  witness  was  unable  to  understand  what 
was  done.  The  whole  scene  was  one  of  unprecedented  haste,  insomuch 
that  it  is  still  matter  of  doubt  how  the  questions  were  put.  Now,  though 
these  facts  were  fairly  put  to  the  jury,  it  is  impossible  not  to  see,  that  the 
verdict  is,  in  this  respect,  manifestly  against  the  current  of  the  evidence. 

Other  corroborative  views  have  been  suggested;  but  it  is  difficult  to 
compress  a  decision  of  the  leading  points  in  this  case  into  the  old  fashioned 
limits  of  a  judicial  opinion.  The  preceding  observations,  however,  are 
deemed  enough  to  show  the  grounds  on  which  we  hold  that  the  Assem- 
bly which  met  in  the  First  Presbyterian  Church  was  not  the  legitimate 
successor  of  the  Assembly  of  1837;  and  that  the  defendants  are  not  guilty 
of  the  usurpation  with  which  they  are  charged. 

Rule  for  a  new  trial  made  absolute. 

75 


594  PRESBYTERIAN  CHURCH  CASE. 

Judge  Rogers. — After  the  patient  and  impartial  investigation,  by  me, 
of  this  cause,  at  Nisi  Prius,  and  in  bank,  I  have  nothing  at  this  time  to 
add,  except  that  my  opinion  remains  unchanged  on  all  the  points  ruled  at 
the  trial.  This  explanation  is  deemed  requisite,  in  justice  to  myself,  and 
because  it  has  become  necessary  (in  a  case,  in  some  respects,  without  pre- 
cedent, and  presenting  some  extraordinary  features)  to  prevent  misappre- 
hension, and  misrepresentation. 


INDEX 


Abrogation  of  Plan  of  Union,  37. 
Adair,  testim.  of  Rev.  Robert,  107. 
Agnew,  testim.  of  Samuel,  206. 
Associate  Ref.  Ch.,  Union  with  the,  126. 
Auchincloss,  testim,  of  Hugh,  188,  224. 


B. 


Bissell,  case  of  Mr,  77. 

Boardman,  testim.  of  Rev.  Henry  A,  187, 

202,  224. 
Breckinridge,  testim,  of  Rev,  Robt.  J.  202. 
Brown,  testim.  of  Rev.  Isaac  V.  174. 
"  "  Judge  Henry,  214, 


Cathcart,  testim.  of  Rev.  Dr.  Robt.  78,  111. 
Citation  of  inferior  judicatories,  38,  45. 
Committee  on  State  of  the  Ch,  (1837)  39, 

et  seq. 
Constitution  of  Presb.  Church,  amended  in 

1821,  23— the  whole  of  it  in  evidence, 

126. 
Converse,  testim.  of  Rev.  Amasa,  113. 
Counsel,  names  of,  12. 


Fisher,  testim.  of  Rev.  Dr.  Samuel,  102, 


Gemmell,  testim.  of  James  R.  212. 

Gen.  Assembly,  how  formed,  &c.  24,  155. 

Gibson,  C.  J.,  opinion  of,  587. 

Gilbert,  testim.  of  Rev.  Eliphalet,  79,  99. 


H. 


Hamilton,  testim.  of  William,  204. 
Harris,  testim.  of  Dr.  William,  170. 
Hill,  testim.  of  Rev.  Dr.  WilUam,  75,  211. 
Hindman's  case,  535. 
Hubbell,  argument  of  Mr.  495  ;  opening,  129 ; 

on  points  of  evidence,  32,  34,  57,  95, 

122,  171,  185. 


I, 


Incorporation,  act  of,  20, 

Ingersoll,  argument  of  Mr.  339  ;  on  points  of 

evidence,  34,  35,  86,  124,  171,  183. 
Introduction,  9, 

J. 


Davis,  testim.  of  Rev.  James  M.  216. 
Delaware,  decision  of  Sup.  Court  of,  537, 
Dingee,  testim.  of  Charles  H.  115. 


Jesup,  testim.  of  Judge  William,  57,  70, 
Johns,  C.  J.,  opinion  of,  537. 
Jones,  testim.  of  S.  Beach,  205. 
Jury,  names  of  the,  12. 


Elders,  report  of  «yn.  of  W.  Reserve  con- 
cerning, 27. 

Elliott,  testim.  of  Rev.  Dr.  David,  197. 

Ehnes,  testim.  of  Thomas,  215. 

Evans,  testim.  of  Thomas,  185. 

Ewing,  resolution  of  Mr.  (1837,)  66. 

Exscinded  Synods,  creation  of,  24 ;  recogni- 
tion  of,  25,  etseq.i  Presbyteries  belong- 
ing to  the,  36. 

Excision  of  Syn.  of  W.  Reserve,  44 ;  of 
Syns.  of  Utica,  Geneva,  and  Genesee, 
45,  46, 


Krebs,  statement  of  Rev.  John  M.  (1837,) 
67  ;  testim.  of,  67,  68,  69,  158,  224. 


Lathrop,  testim.  of  Rev.  Daniel  W.217. 
Lowrie,  testim.  of  Walter,  178,  224. 


Maclean,  testim.  of  Rev.  John,  207,  211. 
^ason,  testim.  of  Rev.  Dr.  Erskine,  88, 127. 


596 


INDEX. 


McDowell,  testim.  of  Rev.  Dr.  John,  66,  67, 

68,  69,  210. 
McElroy,  testim.  of  Archibald,  111. 
McFarland,  testim.  of  Rev.  Francis,  184. 
Meredith,  arguments  of  Mr.  225,  502;  on 

points  of  evidence,  86,  87,  183. 
MiUer,  testim.  of  Rev.  Dr.  Samuel,  173. 
MitcheU,  testim  of  Dr.  AJex.  W.  202. 

"  »  Joseph  B.  205. 

Moderator,  change  of  (1835)  78;  duties  of, 

157;  induction  of  new,  193. 


N. 


Norris,  testim.  of  Edward  C.  207. 

Nott,  deposition  of  Rev.  Dr.  Eliphalet,  224. 

Noyes,  testim.  of  Rev.  Varnum,  182. 


R. 


Randall,  argument  of  Mr.  505 ;  Opening,  12; 
on  points  of  evidence,  34,  58,  64,  65,  96, 
122,  123. 

Ranstead  Court,  description  of  church  in, 
50. 

Reasons  for  new  trial,  483. 

Relators,  election  of,  83. 

Report  of  Comm.  on  State  of  the  Ch.  (1837) 
39,  et  seq. 

Rogers,  J.  charge  of,  to  the  jury,  461;  deci- 
sions'of,  on  points  of  evidence,  «fec.  34, 
35,  51,  64,  66,  67,  84,  86,  87,  96,  98, 
100,  106,  119,  120,  125,  171,  172,  184, 
185,  193,  201,  202,  218,  377,  430,  443, 
594. 


Objections  to  evidence,  &c.  32,  51,  54,  55, 
57,  64,  67,  68,  69,  84,  85,  86,  87,  92,  95, 
100,  106,  117,  118,  119,  122,  162,  171, 
172,  183,  214,  216,  218,  219,  221,  224, 
349,  377,  430,  534. 

Organization  of  G.  Assemb.,  rules  for  the, 
156;  of  1838,  minutes  of  the,  219,  222. 


P. 


Pastoral  Letter,  (New-school)  190. 
Fatten,  testim.  of  Rev.  Dr.  William,  50. 
Paul,  testim.  of  James  W.  214. 
Phelps,  testim.  of.  Rev.  Eliakim,  118. 
Philadelphia,   Third  Presby.  of,   dissolved, 

30,  47. 
Phillips,  testim.  of  Rev.  Dr.  Wm.  W.  166, 

181,  224. 
Plan  of  Union  of  1801,  48;  abrogation  of, 

37. 
Plans  of  Union  and  Correspond.,  &c.  49, 

235,  236. 
Pleadings,  abstract  of,  20. 
Plumer,  testim.  of  Dr.  Wm.  S.  194. 
Potts,  testim.  of  Stacy  G.  168. 
Presbytery,  how  formed,  &c.  23. 
Preston,  argument  of  Mr.  276;  on  points  of 

evidence,  61,  84,  85,  92. 
Process,  forms  of,  28,  29,  30,  31. 
Protests,  38,  45,  47,  48,  157. 

Q. 

Quo  Warranto,  writ  of,  9,  10,  11. 


Sergeant,  argument  of  Mr.  509;  on  point  of 

evidence,  97. 
Session,  church,  how  formed,  «fec.  155. 
Squier,  testim.  of  Rev.  Miles  P.  70. 
Statistical  Tables,  form  of,  &c.  156. 
Suits,  brought  by  Mr.  Squier,   Mr.  Brown, 

and  Mr.  Hay,  record  of,  200,  201. 
Symington,  testim.  of  Alex.  203. 
Synod,  how  formed,  &c.  23. 


T. 


Tarr,  testim.  of  Elihu  D.  213. 

Testimony,  for  Relators,  20,  211;   for  Re- 

spend  ents,  155,  221. 
Trustees,  manner  of  choosing,  22 ;  election 

of  (1837)  45;  election  of  Relators,  83. 
Twitchell,  testim.  of  Jerome,  181. 


W. 

Wetmore,  testim.  of  Rev.  Oliver,  121. 
White,  testim.  of  Ambrose,  125. 

Rev.  Nathan  G.  175. 
Wilson,  testim.  of  Rev.  Dr.  Samuel  B.  171, 

174. 
Wilson,  testim.  of  Samuel  P.  177. 

WiUiam,  188. 
Wood,  argument  of  Mr.  397;   on  points  of 

evidence,  59,  85,  95. 
Worrell,  testim.  of  Charles  F.  208. 


THE  END. 


